Amar Singh vs State of Punjab

V. S. Aggarwal, J.

By this common judgment two Criminal Revision Petitions bearing No. 1280 of 1987 and 519 of 1988 can conveniently be disposed of together because both the criminal revision petitions are directed against the common judgment of the learned Sub Divisional Judicial Magistrate, Anandpur Sahib dated 8.5.1984 and that of the learned Addl. Sessions Judge Ropar, dated 9.12.1987. The learned Sub Divisional Judicial Magistrate, Anandpur Sahib had held the petitioners guilty of the offences punishable under Sections 323/324/325 read with Section 34 of the Indian Penal Code. Except Amar Singh, other petitioners were extended the benefit of Probation of Offenders Act. So far as Amar Singh petitioner is concerned, he was sentenced to undergo rigorous imprisonment for one month and a fine of Rs. 100/ under Sections 323/34 of the Indian Penal Code; six months rigorous imprisonment and a fine of Rs. 250/ for the offence punishable under Sections 324/34 of Indian Penal Code and one year rigorous imprisonment and a fine of Rs. 1,000/ for the offence punishable under Section 325 of the Indian Penal Code. They had preferred appeal which was dismissed by the first appellate court.

The relevant facts as alleged by the prosecution are that on 8.11.1982 at about 9.00 p.m. Dalel Chand, the complainant, was proceeding to his house from his duty. When he reached near his house, all the petitioners at that time were irrigating their fields. A khal passes through the land of the complainant. The water from that khal was going to the fields of the complainant. The complainant had prepared the same for sowing the wheat. He requested the petitioners to repair the khal. On this, wife of Jit Singh raised a lalkara. At that time Jit Singh was armed with an axe. He gave a blow with the same on the forehead of Dalel Chand as a result of which he fell down. Amar Singh gave a lathi blow on the person of Dalel Chand. Karnail Singh was armed with a spade. He gave a fist blow. Dalel Chand raised alarm. This attracted his wife Kaushalya and son Rajinder Kumar besides one Raman Kumar. On seeing them, the petitioners ran away.

The injured was removed to Civil Hospital, Anandpur Sahib, by Rajinder Kumar and one Avtar Singh. Four injuries were found on the person of the injured. Ruqa had been sent to the police station. On receipt of the same, Head Constable Balbir Singh came to the hospital. He recorded the statement of Dalel Chand. On the basis of that statement, formal First Information Report was recorded. Further investigation had been recorded by Sub Inspector Harbans Singh. He collected the bloodstained earth and prepared rough site plan. The radiological examination revealed that there was a fracture of the right leg. On these broad facts, challan against the petitioners has been filed.

The learned trial Court framed the charges against the petitioners for the offences punishable under Sections 323/324 and 325 read with Section 34 of the Indian Penal Code. They had pleaded not guilty and claimed a trial.

In support of its case, prosecution had examined six witnesses in all which included Dalel Chand PW2 and Raman Kumar PW3 besides other witnesses.

The petitioners were examined and incriminating evidence was put to each of them by way of separate questions. They denied their involvement. It was asserted that Karnail Singh on the night of the alleged occurrence was irrigating his fields and he was prevented from doing so by Dalel Chand. When Dalel Chand was asked not to block the khal, thereupon Dalel Chand even tried to beat him. To save himself, Karnail Singh hurled the spade as a result of which injuries were received by Dalel Chand. The other petitioners did not admit their presence. Amar Singh had taken the plea that he remained present on duty from 4.00 p.m. to 12.00 a.m. and at the relevant time he was not present at the site.

The learned trial Court had believed the eyewitness account of two witnesses and held that it has been abundantly proved beyond all reasonable doubt that the said persons had committed the relevant offences. They were held guilty of the offences punishable under Sections 323/324/325 read with Section 34 of the Indian Penal Code. With these findings, Amar Singh petitioner was awarded the sentence already referred to above. But so far as Jit Singh and Karnail Singh were concerned, they were given the benefit of Probation of Offenders Act. The appeal filed by the petitioners was dismissed and hence the present revision petition.

So far as the plea of alibi taken by Amar Singhpetitioner is concerned, the same had been rejected by both the trial court as well as the learned Addl. Sessions Judge. The defence put forward was that Amar Singhpetitioner was present on duty at the relevant time. The defence witness in this regard so examined, indeed, could not establish that fact. When he was examined, learned trial Court had made a note that there is a cutting with respect to the timing when the said petitioner is stated to be on duty. In the face of said cutting and erasion in the relevant register, the defence version of the petitioner was rightly rejected.

In the present case, Dalel Chand had himself appeared as PW2 and supported the prosecution case. He is not only an injured but also an aggrieved person. There is no reason as to why he would depose falsely and implicate the petitioner without valid reason. Raman Kumar had also appeared and supported the version of Dalel Chand. The crossexamination yielded little result so as to permit the court to conclude that the testimony is not worthy of credit.

In the grounds of revision, a fact that has been highlighted is that charge had been amended and thereafter no further opportunity had been given to the petitioners to further crossexamine the witnesses. Reference in this regard is being based on Section 217 of the Code of Criminal Procedure which reads as under :

"217. Recall of witness when charge altered : Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed

(a) to recall or resummon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or reexamine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material."

A perusal of Section 217 of the Code of Criminal Procedure indicates clearly that whenever charge is altered or added, the prosecutor and the accused had a right to recall or resummon the witness already examined. The exemption (exception ?) is that the Court for reasons to be recorded in writing, may consider that calling of the witness would be vexatious and defeat the ends of justice.

To appreciate this particular contention, one can refer with advantage to the record of the trial court. On 4.5.1984 the learned trial court had deleted the charge of Section 326 of the Indian Penal Code and instead framed charges against the petitioners with respect to offences punishable under Sections 323/324/325 of the Indian Penal Code. Thereupon the trial court passed the following order :

Present : As before

Charge reformed against the accused. They pleaded not guilty thereto. Reforming of the charge is such that prosecution is not likely to be prejudiced in case this court proceed forthwith nor the accused are going to be prejudiced in their defence.

The accused have filed an application for tendering in evidence a certified copy of the order. That order has some bearing on their defence as they have contended that there is old litigation between them and the complainant. In the interest of justice, the accused are allowed to tender that certified copy in their defence. They closed their defence evidence. For arguments to come up on 7.5.1984.

Sd/

SDJM/APS"

A perusal of the said order does not indicate in so many words that recalling of the witnesses would be vexatious and defeat the ends of justice. But unsaid is obvious. The learned trial court has clearly recorded that no prejudice is likely to be caused in their defence by amendment of the charge. Obviously, learned trial court certainly indicated that no useful purpose would be served by recalling the witnesses further.

Otherwise also, amendment of the charge was formal in nature. The substratum of the evidence is the same. Instead of Section 326 of the Indian Penal Code, Section 325 of the Indian Penal Code had been added. It was not going to change the nature and contents of the material evidence or the charge. In fact, no request had been made even by the petitioners at that stage.

On the contrary, the petitioners led defence evidence and when these facts are examined on the touchstone of the fact that no prejudice is caused coupled with the nature of the order which clearly show that the trial court noticed that no prejudice is being caused or in other words it is unnecessary to recall the witnesses, there is no ground to interfere.

For these reasons, on merit there is no ground to interfere in the findings of the trial court.

So far as Amar Singhpetitioner is concerned, his sentence, indeed, in the peculiar facts requires to be suitably reduced. The incident is 16 years old. He has undergone only a part of the sentence. There is nothing to indicate that since the time of said incident there is any further escalation in the dispute that took place with respect to the khal. Otherwise also, it would not be appropriate after so many years to direct him to undergo sentence. Accordingly, it is directed that qua him sentence be reduced to one already undergone. Since the other petitioners had been awarded the benefit of Probation of Offenders Act, it requires no interference.