Amrit vs State of Haryana

B.S. Yadav, J.—Amrit, petitioner (hereinafter also referred as accused) along with Dhanpat was prosecuted in the court of the Chief Judicial Magistrate, Karnal for having committed offences falling under sections 326, 452 and 506, all read with section 34, I.P.C. The learned Chief Judicial Magistrate acquitted them of offence falling under section 506 IPC, but convicted them for the remaining offences. He sentenced Amrit to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/ under section 326 read with section 34 IPC and to one year''s rigorous imprisonment under section 452 read with section 34 IPC. Imprisonment in default of payment of fine was also awarded to him. His coaccused Dhanpat, was awarded lesser sentences under the abovesaid offences as he had not caused any injury to Tara Chand, injured. The substantive sentences in respect of each accused were ordered to run concurrently. Feeling aggrieved against their convictions and sentences, Amrit and Dhanpat filed appeal which was heard by the learned Additional Sessions Judge, Karnal. He found the participation of Dhanpat doubtful and acquitted him of the charges. He also altered the conviction of Amrit, accused to under sections 326 and 452 IPC. In respect of the former offence he reduced the sentence of rigorous imprisonment to two years and fine of Rs. 400/ and in respect to the latter, to nine month rigorous imprisonment and imposed a fine of Rs. 100/ Rigorous imprisonment in default of fine was also awarded. The substantive sentences of imprisonment were ordered to run concurrently. Amrit, petitioner, has now filed this revision petition.

The prosecution story in brief is that on 19th May, 1976 at about 10.00 a.m. Tara Chand PW1, was constructing a wall in front of his house. His wife, Kela PW3, Chatra PW2, Randhira PW4, Dharam Singh PW5 as Bhoopa were also present there. Amrit and Dhanpat (acquitted accused) came there. The former was armed with a knife. Amrit abused Tara Chand. Dhanpat exhorted Amrit to catch hold of him (i.e. Tara Chand). Tara Chand ran in side his house. Amrit and Dhanpat also went after him and the former gave a blow with his knife on the left side of the abdomen of Tara Chand while Dhanpat raised a lalkara that he should be finished. Tara Chand became unconscious. The accused ran away. Tara Chand was removed to Civil Hospital, Panipat where he was medically examined by PW9 Dr. M.S. Bhatia who found one incised wound on the front of left abdomen in the left lumber region. Tara Chand also complained of pain in the front of the chest. Exhibit PW9/A is the medical certificate prepared by the said doctor in relation to Tara Chand.

On receipt of a Ruqa from Civil Hospital, Panipat, A.S.I. Sudarshan Kumar went to the hospital and after obtaining the opinion of the doctor about the fitness or Tara Chand to make a statement, he recorded his statement, Exhibit PA. He sent that statement to the police station for registration of a case and on its basis formal First Information Report, Exhibit PA/1 was recorded by ASI Vidya Sagar. A.S.I. Sudarshan Kumar PW8 conducted the necessary investigation. He arrested the accused on the same day i.e. 19th May, 1976. Since the accused was having injuries on his person, he was got medically examined on 20th May, 1976. The medical examination was done by PW9 Dr. M.S. Bhatia at 11.05 a.m. He found the following injuries on the person of Amrit accused :

Lacerated wound, 1/3" x 1/6", on the top of his head in the middle line, I" to the back of Hari line. The wound was skin deep.

An abrasion mark, 11/4"x1/4", reddish brown in colour on front of the lower part of left knee.

Complained of pain on front of lower part of left leg". The said doctor opined the above injuries to be simple in nature and to have been caused within a probable duration of 24 hours. After the completion of investigation the accused Amrit and Dhanpat (acquitted accused) were charge sheeted.

It is not necessary to give the plea of Dhanpat as he has since been acquitted. Amrit accused pleaded that a scuffle took place between him and Tara Chand. Tara Chand was armed with a lathi and he gave him lathi blows. His (i.e. Amrit) mother suffered injuries when she came forward to rescue him. According to him there was a dispute between him and Tara Chand over a plot.

In his defense the accused had examined DW1 Rama who supported the plea of Amrit accused.

The learned counsel for the petitioner argued that though while exercising the revisional powers the High Court does not usually reappraise the evidence, but in the present case there has been miscarriage of justice, therefore, the evidence may be gone into. To support the above argument, the learned counsel for the petitioner pointed out that admittedly in the present case, Amrit accused was found having injuries on his person when he was arrested and the prosecution has not given any explanation for those injuries and both the lower Courts have dealt with the point in a different manner. It has been further pointed out that both the Courts have wrongly rejected the evidence of D.W. 1 Rama, who according to the first information report had witnessed the occurrence. I am of the opinion that the above arguments of the learned counsel for the petitioner have force and to appreciate those arguments, I will have to go through the evidence.

The prosecution version as already given in detail is that occurrence took place when PW 1 Tara Chand started constructing a wall. The prosecution evidence is very much discrepant on this point. PW1 Tara Chand had stated that on the day of the occurrence he was constructing a wall in front of his house when Amrit petitioner and Dhanpat (acquitted accused) came there and objected to the construction of the wall. However, PW2 Chatra gives a different version. He has stated that a mason was constructing a wall on the asking of Tara Chand PW when the occurrence took place. PW3 Kela who is wife of PW1 Tara Chand has also stated that her husband was getting the wall constructed when Amrit and Dhanpat came there. It is to be noted that Investigation officer has not stated that when he inspected the spot he found any sign about the construction of a wall.

The defence plea, as noticed earlier, is that Tara Chand PW was demolishing a wall of Amrit petitioner when the occurrence took place. This plea finds corroboration from the statement of DW1 Rama who has stated that Tara Chand PW was demolishing the wall of Amrit. This witness as noticed earlier, was named by the complainant in the first information report as an eyewitness of the occurrence. His statement cannot be discarded merely on the ground that the prosecution gave him up as having been won over and the accused was forced to examine him. The learned trial Court disbelieved the statement of Rama on the ground that he had been changing his stand. The learned trial Court formed that opinion because DW 1 Rama was allowed to be confronted by the prosecution with his earlier statement. It is the settled law that if a prosecution witness appears as a defence witness, he cannot be confronted with his earlier statement made before the police. The provision to section 162(1) of the Code of Criminal Procedure, lays down what when any witness is called for the prosecution in any inquiry or trial whose statement has been reduced into writing, as aforesaid, any part of his statement, if duly proved may be used by the accused and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by section 145 of the Indian Evidence Act. Thus, the learned trial Court committed an error in procedure when it allowed DW1 Rama to be confronted with his earlier statement recorded during the investigation. If that earlier statement made by that witness is taken out from consideration, there is nothing on the record to show that he has been changing his stand.

The learned counsel for the accused further argued that the prosecution evidence consists of partisan witnesses. P W 1 Tara Chand has denied the fact that Chatra PW2 is his uncle. However, Chatra PW had admitted that the father of Tara Chand PW is his brother. PW3 Kela is wife of Tara Chand (PW1). PW4 Randhira is also said to have witnessed the occurrence, but he was only tendered for crossexamination. Moreover, he is brother of Tara Chand PW. Though in the first information report Rama was said to have witnessed the occurrenced, but Tara Chand, and Smt. Kela did not state in Court that Rama had come to the spot at the time of occurrence.

When the evidence consists of partisan witnesses and the injuries of accused are not explained, then the genesis of the occurrence becomes doubtful. Out of the injuries found on the person of Amrit accused, as already noticed, one injury is a lacerated wound on the top of the head. The learned trial Court did not give weight to the injuries on the person of the accused and remarked that the said accused had not taken the plea of self defence nor he had stated that he had given the knife blow to Tara Chand PW in his self defence and moreover, the injuries found on his person could be self suffered. A person would not suffer a lacerated wound on the top of his head. Head is a vital part of the body. Even if the accused does not take the plea of selfdefence from the circumstances appearing in the case he could show that he acted in the exercise of his right of selfdefence. The learned lower Appellate Court ignored the injuries of the said accused by remarking that it is settled law that the fact that the prosecution has not explained the injuries on the person of the accused is by itself no ground for discarding the entire case of the prosecution. Of course, when the injuries are simple in nature, the prosecution is not bound to explain them. But in the present case, as noticed earlier, one of the injuries is on the head of the accused. In the circumstances of the present case, the statement of DW 1 Rama that Tara Chand PW had given the blows with the Lathi to Amrit accused, cannot be lightly discarded.

It cannot be disputed that when Tara Chand PW was showering lathi blows upon Amrit accused, the said accused could have used his knife in his selfdefence because there was every likelihood of his sustaining a grievous injury from the lathi blow. Therefore, Amrit accused was justified in injuring Tara Chand PW in his right of selfdefence.

For the foregoing reasons, it is held that present case, the prosecution version cannot be safely relied upon. Consequently I accept the present revision petition and set aside the conviction and sentence of the petitioner and acquit him of the charges. The fine, if paid, be refunded to him.