Sudershan Kumar vs State of Haryana

B.S. Yadav, J.

Sudershan Kumar appellant (hereinafter also referred as accused has been convicted under section 307 of the Indian Penal Code by the learned Additional Sessions Judge. Kurukshetra, and has been sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 100/. It has also been ordered that in default of payment of fine the accused would further undergo rigorous imprisonment for 2 months. Feeling aggrieved against his conviction and sentenced the accused has filed this appeal.

The prosecution story as gathered from the evidence is that on 20th June, 1979, P.W 5, Mian Khan accompanied by his motherinlaw P.W.6 Piari had got down from a bus at village Cheeka at about 8.30 P.M. Before proceeding to village salimpur, which was their destination, they took their assault the Dhaba of one Amrik Singh. When they came out of Dhaba, Darshan Kumar accused, who was present there, cut incident jokes with P.W. Piari. Mian Khan asked the accused not to do so. Darshan Kumar subjected the sword which Mian Khan was carrying. After taking it out from its sheath, he gave a blow with it on the head of Mian Khan. Mian Khan was wearing a turban and it fell down. The accused gaye another blow with the Kirpan on the head of Mian Khan. There after the accused ran away leaving the Kirpan at the spot.

P.W.5 Mian Khan and P.W 6 Piari went to Police Post, Cheeka, where they reached at about 10. 15 P.M. Mian Khan lodged report which was recorded at serial No. 13 of the Daily Dairy by head Constable Onkar Singh. Exhibit PF is the copy of that entry. P.W.8 A.S. 1. Daulat Rani, who in those days was posted in that Police Post. seat P.W.6 Mian Khan to the Primary Health Centre, Ghula, for medical examination. he was medically examined by P.W. I Dr. R. C. Mittal, who found the following injury on his person :

"An inside wound. 9 cm x I cm, bone deep on the left side of the enterior part of the head in vertical direction."

In the opinion of the said doctor the above injury was caused within a duration of 6 hours by a sharp weapon. He advised Xray. The radiological examination of Mian Khan injured was done by P.W. 2 Dr. R. R. P. Dhawan and he found fractural of the left parietal and frontal bones.

On receipt the medical report of Mian Khan, P.W.8 A.S.I. Daulat Ram sent ruqa Exhibit PF/l to the Police Station, Ghula for registration of a case and on its basis formal first Information Report Exhibit P.F./2 was recorded by S. 1. Amir Singh, A.S.I. Daulat Ram took up the investigation and went to the spot From there he lifted sword Exhibit P. I and blood stained earth and after sealing them into separate parcles, took them into possession in the presence of P.W. 6 Piari P.W.7 Jhana Ram. He also prepared visual plan of the spot and the same is Exhibit PK. The accused was produced before him at about 12 or I P.M. 21st June, 1979 by Bhima Kabalia. During the investigation, plan Exhibit PG of the spot of occurrence, according to the scale, was got prepared from P.W.4 Alam Singh. After necessary investigation the accused was chargesheeted.

The accused when examined under section 313 of the Code of Criminal Procedure denied the prosecution allegations and took up the following plea :

"I used to do work with Bhim Sain Kabari. The occurrence took place with Bhim Singh "At his instance I agreed to be produced before the police. When the said talk took place, Bhim Sain, Nirmal Singh and Sheeru were there."

In defence the accused examined D.W. I Jarnail Singh He has stated that this shop was situated near the shop of Bhim Sain. Oil the day of occurrence at about 9.30 P.M. One Bazigar aged about 23 years along with a women. approached Bhim Sain for sale of some iron scrap. Bhim Sain was drinking liquor at that time. Bhim Sain refused to purchase the iron scrap. Some quarrel ensued between Bhim Sain and the said Bazigar. Bhim Sain picked up a sharp iron pieces and assaulted the Bazigar.

The learned counsel for the appellant argued that P.W.6 Piari has stated the accused had asked her to stay with him for the night or she should supply a girl to him and that remark of the accused is said to have given offence to P.W.5 Mian Khan who objected to it and thereupon the present occurrence flared up. He argued that the above part of the prosecution verdopm appears to be very Unnatural because Piari is aged about 10 years while the accused is aged 22 years and he would not asked Such an old women to sleep with him. I do not see any unnaturalness in this part of the prosecution story. The accused might have thought her to be a women of lose character when he saw her with a man at about 9 30 P.M. Thus the accused appears to have asked Piari to sleep with him or to supply him some girl.

The learned counsel for the accused next argued that when Mian Khan took objection to the said remark of the accused, the later could not have taken offence because it was his own fault. This argument also has no force. It appears that some altercations took place between P.W.5 Mian Khan and the accused. The accused could not tolerate a bazigar rebuking him and, therefore, he snatched the Kirpan of Mian Khan and caused him injury.

The learned counsel for the accused next argued that Amrik Singh at whose Dhaba Mian Khan and Piari had taken the meals, is said to be present at the spot but he has not been examined in the witnessbox. The complainant party was outsider in Checks and, therefore, no person of that place would be Cheeka to support it.

The prosecution story already given in detail above, has been fully supported P.W.5 Mian Khan and P.W.6 Piari. Both these witnesses were crossed examined at length but no infirmity has appeared in there statement. It is not the case of the accused that any of these witnesses had any enmity with him. The accused was denounced at the earliest. Immediately after the occurrence P.W.5 Mian Khan and Piari went to the Police Post, Cheeka, and lodged the report. It was recorded in the Daily Diary and its copy is Exhibit PF The name of the accused find mentioned in that report.

The accused had disputed the spot of occurrence. According to him the occurrence took : place in front of the shop of one Bhim Sain Kabari. P.W.8 A.S.I. Daulat Ram had inspected the spot and had prepared its visual plan and the same is Exhibit PK. The point from where the bloodstained earth was lifted is shown in this plan as being situated in front of the Dhaba of Amrik Singh. As noticed earlier, bloodstained earth lifted front that place was sealed into a parcel in the presence of P,W.6 Piari and P.W.7 Jaiana Ram. The sealed parcel of the bloodstained earth was sent to the Forensic Science Laboratory Haryana Madhuban. From there report Exhibit PO was received to the effect that it was stained with blood of human specie. Thus the plea of the accused Oat the peirence had taken place in front of the shop of Bhim Sain Kabaria is relied.

The prosecution story further finds corroboration from the fact that it was Bhim Sain who had produced accused before P.W.8 A.S.I. Daulat Ram. The plea of the accused that as he used to work with Bhim Saing, therefore, at his instance to be produced before the police, can hardly be given any credence. No person, it will like to place his In the noose. The accused must he knowing that he being produced as an accused in the present case.

Hence in view of my above discussion, I hold that the statements of P.W.5 Mian Khan and P.W.6 Piari can be safely relied upon for arriving at the conclusion that it was the accused who had assaulted the former witness with a Kirpan.

Lastly the learned counsel for the accused argued that the offence committed by the accused does not fall under section 301 of the Indian Penal Code. According to him, P.W. I Dr. R. C. Mittal did not give any opinion about the nature of injury found on the head of Mian Khan on 20th June, 1979, when be examined him. However, on 8th September, 1979, he opined that the injury was grievous in rat, re and was dangerous to life and the reasons given by him are that there was compound fracture of skull and the condition of patient at the time of examination was serious due to shock. He has argued that there is no evidence on the file to show that the injury found on the person of Mian Khan was sufficient to cause death, in the ordinary counsel of nature or the condition of the injured ever deteriorated, He argued Oat at the most the offence committed by the accused falls under section 326 of the Indian Penal Code. In support of his contention he has cited Tej Ram v. The State of Punjab 1978 C.L.J. (Pb. & Har.). 76 wherein Koshal J. (as His lordship then was) remarked :

"The injury in question has reputed the lung of the victim and was described by the examining doctor as "dangerous to life and if not treated, i.e. to say that but for timely and medical aid the injured was likely to die. This certainly not the type of the injury as would attract the provisions of section 307 of the Code which envisages an injury sufficient in the ordinary course of nature to cause death. The inJury described by the doctor was a lesser injury which, in my opinion, would fall within clause Eightly of section 300 of the Indian Penal Code and be punishable under section 326 thereof."

The above ruling clearly supports the learned counsel for the appellant.

The learned counsel for the appellant further prayed that the sentence of the appellant be reduced. In the present case I do not find any ground to take a lenient view. The accused misbehaved with P.W. 6 Piari. When P.W.5 Mian Khan took objection to that misbehaviour, the accused caused him compound fracture of the skull. 16. For the foregoing reasons I after the conviction of the appellant to one under section 326 of the Indian Penal Code. The sentence awarded to him by the learned trial Court is maintained. The appeal is disposed of accordingly.