Kundan vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Kundan Lal, Rohtas, Ishwar, Ramphal, Sumer Singh, Ram Chander, Ganpat son of Gahar Singh, and has been directed against the judgment dated 1.6.1987 passed by the Court of Additional Sessions Judge, Narnaul, and the order of sentence dated 6.6.1987, vide which the present seven appellants were convicted under Section 148/325, IPC, with the aid of sections 149, 323 read with section 149, IPC, and each one of them was sentenced to undergo RI for one year each under Section 148, IPC, 2 years each under Section 325 read with section 149, IPC, and to pay a fine of Rs. 500/, in default of payment of fine, each one of them was directed to further undergo RI for 3 months; 3 months each under Section 323 read with section 149, IPC. All the substantive sentences were ordered to run concurrently.

The occurrence in this case has taken place on 15.9.1986 at about 8 P.M. in village Notana falling within the jurisdiction of police station Kanina, primarily on a minor incident of altercation between two young boys Rohtas, accused on one hand and Pritam and Attar Singh, nephews of Ganpat, complainant, on the other hand. They were travelling in a bus on that morning. After the senior members of two families were informed in the matter, they joined the issue over that. When Sultan, younger brother of complainant, passed from near the house of Ganpat, accused, he came across Prabhu, father of Rohtas, accused. It was pleaded by Sultan Singh to Prabhu Dayal that the incident of dispute between the children should not be flared up. Just then, all the seven accused persons already present outside the house of Ganpat, accused, opened an assault on Sultan, PW. At the first instance, Ram Chander, accused gave a lathi blow to Sultan on his head. On the alarm raised by Sultan Singh, his brother Ganpat was attracted to that place. When he intervened, he was given a blow with Jailly without prong on his head by Ganpat s/o Gahar. Thereafter, Ram Phal, accused, gave a lathi blow to Ganpat on his right hip and other blow was given by Ganpat, accused, on his left hand. Ram Chander also dealt a blow with lathi to Ganpat to right side of his chest. When Rajinder, nephew of Ganpat came there and intervened to rescue his uncles and father, he was given blow with lathi on his head by Kundan Singh, Sumer Singh accused also assaulted him with a lathi on the head whereas Ram Chander accused gave him two lathi blows on his face. Two other lathi blows were given to Rajinder by Ishwar, accused. Yet another lathi blow was given to Rajinder by Rohtas, accused. Ganpat and Sumer Singh accused also belaboured him with lathi. In the meanwhile, Vijay Singh grandson of Ganpat, PW, came there and he allegedly witnessed the occurrence. He was also given lathi blows by Kundan, Ramphal and Ram Chander, accused. The occurrence was allegedly witnessed by Sultan son of Ishwar and Nitya Nand son of Balbir Singh and they intervened to pacify the situation. It is the story of the prosecution that Kundan Lal, Ganpat and Rohtas, accused, also suffered injuries at the hands of the complainantparty during the same occurrence.

All the four injured were taken to the hospital. They where medically examined by Dr. A.K. Chhakkar, PW11, on 16.9.1986 and eight injuries were found on the person of Rajinder, which read as under :

"1. An abrasion 0.5 x 0.5 cm. left parietal region, bled on cleaning, 14 cm. from the ear.

A lacerated wound 0.4 cm. x 0.2 cm. on right parietal region, scalp deep, bled on cleaning, edges were irregular and contused. (Advised Xray).

An abrasion 0.5 cm. x 0.3 cm. on right zygomatic region, bled on cleaning.

A reddish contusion 9 cm. x 1.2. cm on dorsum of right forearm, 6 cm from wrist joint. Swelling was present (Advised Xray).

An abrasion 2 x 0.6 cm posterior of right shoulder bled on cleaning, 3 cm from the acromion process (Advised Xray).

A reddish contusion 11 x 1.2. cm on left side of back, 4 cm. from the middle. Swelling was present.

A reddish contusion, 10 cm. x 0.9. cm on left side of back vertical in direction. Swelling was present.

An abrasion 0.2 x 0.3 cm. on left leg 12 cm. medial malleolus, bled on cleaning."

His radiological examination did not reveal any fracture, so all the injuries of Rajinder Singh were declared simple.

Sultan Singh, PW, received only one injury, which reads as under :

"1. A lacerated wound 6 x 1 cm on left parietal region 10 cm from left ear, bled on cleaning. Edges were irregular and contused. It was bone deep. (The xray was advised)."

This injury was also simple.

Ganpat suffered the following four injuries :

"1. A lacerated wound 4.5 x 1 cm. on right parietal region 8 cm from right ear. It was scalp deep. Edges were irregular and contused. (Advised Xray).

A reddish contusion 4 x 1.2 cm. on right thigh. Swelling was present.

There were multiple abrasions on metacarpo phalyngeal region of left little finger with swelling all over the arm. Bled on cleaning. It was on posterior aspect. Advised Xray."

Ganpat sustained fracture of 11th and 12th ribs on the right side of chest. So this injury of Ganpat was declared grevious.

Vijay Singh, PW, sustained the following three injuries :

"1. A reddish contusion 8 x 1 cm on superoposterior of left shoulder. Advised Xray. Swelling was present from acromion process.

Ab abrasion 0.6 x 0.2 cm dorsum of left middle finger on its proximal phalnax. Bled on cleaning. Advised Xray.

A reddish contusion 6 x .2 cm on ventral aspect of left forearm 4 cm from the elbow joint. Swelling was present. Advised Xray."

His radiological examination revealed fracture of lateral 1/3rd of left clavicle.

The case was registered on the basis of the statement, Ex.PC, made by Ganpat. During the course of investigation, it was also found that there were seven injuries on the person of Kundan Lal, accused, seven injuries on the of Ganpat, accused and six injuries on the person of Rohtas. Thus, it can be said that there are 20 injuries on the person of the accusedparty out of which two injuries are grievous on the person of Kundan Lal and Ganpat.

On the completion of the investigation of the case, the appellants were challaned. It may be mentioned here that the complainantparty was also sent up for trial at the instance of the accusedparty and they were also convicted and sentenced by the trial Court. Their appeal has already been disposed of by me by my separate judgment of the even date.

The challan was submitted in the court of the Area Magistrate, who supplied the copies of the documents to the appellants free of cost as required under the law and vide commitment order dated 3.2.1987 committed them to the court of sessions to face trial. Vide order dated 12.3.1987, the accused were chargesheeted under Section 148, 325, read with section 149 and section 323 read with section 149, IPC. The charges were read over and explained to the appellants, who pleaded not guilty and claimed a trial.

This case was a cross case of the other accused in which the present complaints are accused under Section 307, IPC, therefore, this case was also committed to the court of Sessions in order to avoid any contradictory findings.

In order to substantiate the charges, the prosecution examined Dr. Vinay Chaudhary, PW1, who conducted the Xray examination of Ganpat, PW, and found a fracture. He issued the report, Ex. PA, in this regard. This doctor also conducted the Xray examination of Vijay Singh and found a fracture and in this regard the report, Ex.PB, was issued. I have already given the nature of the fracture of Ganpat and Vijay Singh above. PW2 Ganpat, an injured witness in this case, tried to corroborate his allegations. Rajinder Singh appeared as PW3. Vijay Singh appeared as PW4. Sultant Singh appeared as PW5. Nitya Nand appeared as PW.6. SI Devi Dutt appeared as PW7. Constable Randhir Singh was examined as PW8. Head Constable Om Parkash appeared as PW9 and Pehlad Sharma appeared as PW10. Dr. Ashok Kumar Chhakkar, Medical Officer, who medically examined Rajinder, Sultan Singh, Ganpat son of Nathu Ram and Vijay Singh PWs, appeared as PW11. Head Constable Mahabir Parshad, who investigated this case, appeared as PW12.

On the closure of the prosecution evidence, the statements of the accused were recorded under Section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The appellants denied those circumstances and their plea was that the complainants acted as aggressor.

When called upon to enter into their defence, the accused examined Dr. M.P. Lamoria, DW1 of Civil Hospital, Mahendergarh, who medically examined the three accused on the night of 15.9.1986 and noticed 7 injuries in the shape of lacerated wounds, abrasions and a contusion on the person of Ganpat, six injuries in the shape of contusions and lacerated wounds on the person of Rohtas and seven injuries including an incised wound with a sharp edged weapon on the back of left shoulder being dangerous to life, on the person of Kundan. The accused also tendered into evidence the certified copy of the pedigree table and the copy of the FIR, Ex.DG, which was recorded at the instance of Kundan Lal.

The learned trial Court holding it to be a case of free fight, convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. N.S. Panswar, Senior Advocate, appearing on behalf of the appellants and Shri Sanjeev Sheoran, Advocate, appearing on behalf of the State, assisted by Shri Hari Mittal, Advocate, appearing on behalf of the complainant and with their assistance have gone through the records of this case.

This is a case of version versus crossversion. On the side of the complainant, there are four injured, namely, Vijay Singh, Rajinder Singh, Ganpat and Sultan Singh. On the side of the accused there are three injured; namely, Kundan Lal, Ganpat and Rohtas. On the side of the accused there are 20 injuries whereas on the side of the complainantparty there are 16 injuries. Though an effort has been made by the complainant in his statement, Ex. PC, to explain the injuries of the accused but this Court is of the considered opinion that the complainantparty has withheld the actual genesis of the occurrence. A very innocent explanation is being forwarded by all the witnesses that they sanctched the weapons of the accused and caused injuries but this is not probable. There was a common motive on which both the parties fought with each other. There were grievous injuries on the person of Kundan Lal and Ganpat. These injuries were allegedly caused with small dandas of 2 feet length, allegedly picked up by the complainant party from the spot. This explanation is absurd and cannot be believed. On the contrary, the explanation which has been furnished by the accused is more probable. They were innocently present in front of their house when the complainantparty came there one after the other and they wanted to settle the score. They caused injuries; grievous and simple, to Kundan Lal, Ganpat and Rohtas, who acted in their right of private defence and allegedly caused injuries to Vijay Singh, Rajinder Singh, Ganpat and Sultan Singh. Aggressor has no right of private defence and, in these circumstances, the injuries on the person of an aggressor are not supposed to be explained by the accused. This aspect of the case has not been rightly appreciated by the trial Court when it has recorded conviction against accused Kundan Lal and six others.

In this view of the matter, I accept this appeal, set aside the judgment and other of the trial Court and acquit the appellants of the charges framed against them.