Tirath Ram vs State of Haryana

Ujagar Singh, J.

Kewal Kumar received two injuries as per medical report Exhibit P.A. Both were caused by sharpedged weapon within few hours of the examination which was done at 10 p.m. on 19th June, 1979. The doctor Shri R.K. Patnaik, P.W.1 kept both these injuries under observation on that day and the patient was referred to the ENT Specialist and Dental Surgeon in respect of injury No. 1 on right alae of the nose and it was only on 25th of June, 1979 that P.W.1 described this injury as grievous in nature vide his report Exhibit P.C. The case earlier was registered under Section 324/34, Indian Penal Code, against the present petitioner and his coaccused Satish Kumar. On report Exhibit P.C., the offence was changed to 326/34, Indian Penal Code, and the present petitioner and his coaccused surrendered and were arrested on 13th July, 1979, as they were on bail under the earlier offence. Satish Kumar was released on bail on the same day as he was under 21 years of age. Bail to the present petitioner was refused and he remained in custody for about 20/22 days.

These injuries were caused at about 8.30 p.m. on 19th June, 1979 when the petitioner and his coaccused were indulging in gunda gardi on that date. Kewal Ram P.W.4 requested them to desist from doing so but they did not oblige; rather Satish Kumar alias Kala caught hold of Kewal Kumar from the back side and the present petitioner hit him with a knife, caused hurt to the tongue and the upper right side gun uprooting one of his teeth. The prosecution after examining Dr. R.K. Patnaik, P.W.1 Ranjit Singh A.S.I. P.W.2, Constable Mange Ram P.W.3, Kewal Kumar P.W.4, Raj Kumar P.W.5, Rajinder P.W.6, Sohan Lal P.W.7 and Attar Singh A.S.I. P.W.8 in support of its case, closed its evidence.

After examining all the accused under Section 313, Criminal Procedure Code, their defence was called for but no defence was produced. Rajinder P.W.6 and Sohan Lal P.W.7 did not support the prosecution but Kewal Kumar P.W.4 and Raj Kumar P.W.5, who are admittedly brothers did support, and the trial Court wrongly observed that there was no family member of Kewal Kumar P.W.4 to report the matter to the police which was present in the hospital. The trial Court relying upon the testimony of Kewal Kumar P.W.4 and Raj Kumar P.W.5 in support of the prosecution version found both the petitioner and his coaccused guilty under Section 326/34, Indian Penal Code. While sentencing them, the trial Court observed that Satish Kumar accused was 19 years old when his statement was recovered and the age not having been challenged, he was released on his furnishing bond in the sum of Rs. 1000/ with one surety in the like amount for a period of one year to appear and receive the sentence whenever called upon during that period and in the meantime to keep peace and be of good behaviour under the supervision of the Probation Officer. This period has long expired and this grant of probation has not even been challenged by the State or even the complainant.

The present petitioner having stated his age to be 22 years in his statement under Section 313, Criminal Procedure Code, was sentenced to rigorous imprisonment for three years under Section 326, Indian Penal Code, and one year rigorous imprisonment under Section 324, Indian Penal Code. These sentences were made to run concurrently.

The petitioner went up in appeal and during the pendency of the appeal, a compromise was effected between Kewal Kumar P.W.4, the injured and the present petitioner. This compromise was taken notice of by the appellate Court which after distinguishing the facts of the case of Santokh Singh v. Punjab State reported as 1978 Chandigarh Law Reporter 124 wherein the sentence from three year''s rigorous imprisonment was reduced to one already undergone in view of the compromise for an offence under Section 307/326, Indian Penal Code, reduced the sentence to rigorous imprisonment for one year. The petitioner has filed this revision challenging the order of conviction of the Courts below and the sentence awarded by the appellate Court.

The learned Counsel for the petitioner has laid stress that this occurrence took place on 19th June, 1979 at 8.30 p.m. when it was dark as stated by Rajinder P.W.6 and Sohan Lal P.W.7 and the testimony of Kewal Kumar is not supported by any independent witness and that the testimony of Raj Kumar P.W.5 cannot be relied upon because he happens to be a brother of the injured. He has further argued that Dr. R.K. Patnaik P.W.1 kept both the injuries under observations and referred injury No. 1 to the ENT Specialist and Dental Surgeon where from the report, if any, has not been placed on the record and without any reason P.W.1 described injury No. 1 as grievous vide Exhibit P.C. in 25th June, 1979.

I have heard the counsel for both the sides and I am of the view that the offence in this case is made out under Section 324, Indian Penal Code, only inasmuch as injury No. 1 was not described as grievous in the medicallegal report and later on vide Exhibit P.C. without rhyme or reason the same injury was declared as grievous by Dr. R.K. Patnaik, P.W.1. There is nothing on the record to show as to show as to how P.W.1 described the injury as grievous. The other argument of the learned Counsel for the petitioner is that it was darkness when injures were caused and testimony of injured and his brother is not sufficient to convict the petitioner specially when their testimony is not supported by Rajinder P.W.6 and Sohan Lal P.W.7. I have not been able to persuade myself to agree with the learned Counsel for the petitioner on this point. The testimony of Kewal Kumar P.W.4 and his brother Raj Kumar P.W.5 has been rightly believed.

Since I am of the view that only an offence under Section 324, Indian Penal Code, is made out against the petitioner and there is a compromise arrived at between the parties and further the petitioner has already undergone imprisonment for a period of about one month, it is a fit case to reduce the sentence of the petitioner to that already undergone. With these observations, I partly accept this criminal revision; upholding the order of conviction but altering the conviction from one under Section 326, Indian Penal Code, to that under Section 324 IPC and reduce the sentence to already undergone. The sentence of fine is, however, maintained.

Revision partly accepted.