Kurra and ors. vs State of Haryana

Jai Singh Sekhon, J

Kurra, Jaibir and Raghubir, appellants, were convicted by the Additional Sessions Judge, Hissar, for offences punishable under sections 325/452, Indian Penal Code read with section 34, Indian Penal Code, and each one of them was sentenced to undergo one year rigorous imprisonment, besides to pay Rs. 500/ each on both the counts or in default of payment of fine to further undergo three months rigorous imprisonment. Mst. Dhan Kaur appellant has directed Appeal No. 14SB of 1986 against the abovereferred order of the trial Court, whereby she was also convicted for the above referred offences, but released on probation for a period of two years on furnishing personal bonds etc. She was also burdened with Rs. 500/ as costs of litigation. Out of the fine, if realised, Rs. 1000/ were to be paid to Rameshwar injured and Rs. 500/ to Bhateri P.W. as compensation. Both the sentences were however ordered to run concurrently. Both these appeals, as well as Criminal Revision No. 1554 of 1985 filed by Rameshwar and Mst. Bhateri injured for enhancement of sentence shall be disposed of by this order as these rest upon the same evidence and arise out of the same order of the trial Court.

In brief, the facts are that the houses of the accused and the injured located in village Muklan adjoin each other. There was some dispute between Rameshwar P.W. with Kurra accused for payment of expenses of the common wall of their house on which the latter had constructed a room. The matter was allegedly got patched up by the police. On the evening of occurrence., Rameshwar P.W. again demanded the payment of abovereferred amount from Kurra, but the letter threatened him to teach a lesson. With this background on 10th March, 1985, at about 5 00 in the morning, all the above referred accusedappellants carrying dangs entered the house of Rameshwar P.W. from the roof. Raghubir accused had opened the lid of the box lying there, when Mst. Bhateri (P.W. 5) paternal aunt of Rameshwar (P.W. 4) returned to the house after answering the call of nature and raised alarm. All the accused then gave injuries to her with their respective weapons. Her hue and cry attracted Rameshwar (P W. 4), who was serving fodder to his cattle in the same house. He also tried to intervene and was given injuries by all the four accused. Hazari husband of Mst. Bhateri also reached the spot and saw the occurrence. Dalbir, a resident of that locality also arrived there and allegedly saw the occurrence. During their testimony at the trial both these injured witnesses stated that Rameshwar P.W. was also carrying a denda and gave injuries to Kurra accused in selfdefence, but such was not their version at the investigation stage. All the accused then went away. Both the injured were removed to Civil Hospital Hissar, where Dr. Surinder Singh (P.W. 2) examined Rameshwar at 8.30 a.m. and found seven injuries with blunt weapon on his person, out of which injury No. 4 on the right thumb was ultimately declared grievous as his Xray examination revealed the fracture of proximal phallanx. Dr. Surinder Singh also examined Mst. Bhateri at 9.00 a.m. on the morning of the occurrence and found five blunt weapon simple injuries on her person. The doctor despatched intimation Ex. PE I alongwith medicolegal reports of these injured witnesses to the police station, on receipt of which head Constable Ishwar Singh (P.W. 7) rushed to the hospital and recorded statement. Exh PG of Rameshwar. The statement was concluded at 5.00 P.M. and on its basis a report in the daily diary of the police station was recorded at 5.50 p. m. by A. S. I. Harish Kumar as by then no cognizable effence was disclosed. Thereafter, on 27th March, 1985 after the receipt of Xray report declaring injury No 4 of Rameshwar (P.W. 4) as grievous in nature, formal F.I.R. EX. PC/4 was recorded at the police station by this A. S. I. He then inspected the spot and prepared its rough site plan Ex. PJ, besides recording the statements of Bhateri, Hazari and Dalbir, eyewitnesses. It is noteworthy that Kurra accused was also medically examined on the evening of the occurrence by Dr. Narinder Chakarwati (P.W.6) at Primary Health Centre, Mangli and four blunt weapon simple injuries were observed on his person. After completion of investigation, all the accused were arraigned for trial by submitting the chargesheet before the Judicial Magistrate who committed the case to the Court of Sessions as offence under section 459, Indian Penal Code was exclusively triable by that court.

The trial Court framed the charge for offences under section 459 read with section 34, Indian Penal Code and under section 458 read with section 34, Indian Penal Code against all accused. Before the trial Court in order to prove its case the prosecution examined Rameshwar and Mst. Bhateri injured witnesses, besides examining the medical evidence and the Investigation. Hazari and Dalbir witnesses were given up as unnecessary.

Kurra accused before the trial Court set up the plea of selfdefence which is as follows :

"The occurrence as alleged did not take place. The real facts are that about a month prior to the occurrence complainant party had committed theft of my cotton through the opening made in the wall and I lodged a complaint against them through the Senior Superintendent of Police, Hissar. The openings had been closed. No action has been taken by the police. Only on the day of occurrence Rameshwar forcibly made the opening again. I want up the roof alongwith Pirthi of Deva and protested. There was a fight. Bhateri and Rameshwar attacked me. We caused injuries in self defence on that roof and in this connection I made a petition to the police which is on the file which I am tendering in defence.

The remaining accused also supported his above referred version besides maintaining that they had not entered the house of Rameshwar P.W. or given injuries to him. In support of their defence, the accused examined Mohinder Singh, Complaint Clerk, S. P. Office, Hissar (D.W.6), who deposed about the receipt of a complaint dated 18th February, 1985 from Kurra accused. Dhanpat (D.W. 2) also supported the version of the accused regarding the payment of entire cost of the common wall by them to Hazari P.W.

The trial Court, however, believing the prosecution evidence, convicted the accused for the offences under sections 325/452 read with section 34, Indian Penal Code. Various sentences as referred above were awarded, besides the releasing of Mst, Dhan Kaur on probation. The plea of self defence of the accused, however, did not find favour with the trial Court.

I have heard Mr. H. C Sethi, learned counsel for the appellants and Mr. Kulbir Singh, learned counsel for the State of Haryana, as also Mr. Subhash Ahuja, counsel for Rameshwar and Mst. Bhateri complainantpetitioner in Crl. Revision No 1554 of 1985, besides perusing the record.

Admittedly, according to Rameshwar (P.W. 4), back of the house of the accused touches the back of the house of his uncle. Hazari witness. Dalbir witness is the son of his another uncle Bhagirath. The house of occurrence was constructed by Hazari witness about 10/15 years and the joint wall was also then constructed, The accused persons are also living in the adjoining house for the last 10/12 years. The dispute about the joint wall started about two years prior to his deposition when half share of the cost was demanded by afore said Hazari from the accused and, ultimately, a settlement was arrived at between the parties to the effect that the accused would pay Rs. 1500/ to aforesaid Hazari. Her however, admitted that some amount was paid by the accused about 8 or 9 months prior to this occurrence, but maintained that whole of the amount was not paid. He depected ignorance about the execution of any document of settlement between aforesaid Hazari and Kurra accused or that Dhanpat Member Panchayat and Mani Ram of their village had attested the same Strange enough, aforesaid Hazari has not been examined by the prosecution and was given up as being unnecessary even though his evidence was essential to disclose as to what was the root cause of this incident. On the other hand, the version of Kurra accused that he had paid the entire amount of Rs. 1500/ through a writing Ex.D.C. on 26th June, 1984 is supported by Dhanpat (DW2) an attesting witness of the said writing. Under these circumstances, there is no escape but to conclude that there was no dispute between the parties over the payment by the accused some compensation of the common wall. If that is to then the only dispute between the parties regarding the making of apertures in the joint wall by Rameshwar complainant and stealing the cotton of the accused stacked in the adjoining room, appears to be the sole root cause of the present occurrence, especially when it is not believable that a neighbour will commit trespass in the house after day break at 500 a.m. in order to commit theft as alleged by the two eyewitnesses. The conduct of Kurra accused in lodging the complaint dated 18th February, 1985 with the Deputy Commissioner as well as with the Senior Superintendent of Police as deposed by Mohinder Singh (DW1) in this regard, also leads to the irresistible conclusion that the real dispute between the parties was over the openings by Rameshwar complainant in their joint wall.

The question then arises whether the occurrence had taken place inside the room of the house of Hazari witness or at the roof of the house of the accused when the latter lodged protest with Rameshwar witness as to why he had again made the apertures in the joint wall. In this regard, it is noteworthy that though the place of occurrence falls in the middle of the habitation of village Muklan, but strange enough no independent witness has been cited or produced by the prosecution in order to establish this fact. So much so aforesaid Hazari the real owner of the house of occurrence has not been examined. Under these circumstances, the bald assertions or Rameshwar and Smt. Bhateri, eyewitnesses to the effect that the accused had assaulted them in the room of their house are not acceptable, especially when there is no other circumstantial evidence on the file to prove that the incident took place there. According to Rameshwar (PW4) blood had spilled on the floor of that room and he had pointed out the same to the police, but ASI Harish Kumar (PW8) had not supported the above referred version.

The matter does not rest here, as Rameshwar (PW4) in his statement Ex. P.G. or in his supplementary statement Ex. D. A. recorded on 14th April, 1985 had not come forth with the version that he had caused injuries to Kurra accused with a danda. Similarly, Mst. Bhateri (PW5) has not set up this version in her statement recorded by the police during the investigation of this case. This version had seen the light or the day for the first time during their testimony at the trial, obviously when confronted with the difficulty of explaining the injuries on the person of Kurra accused. Thus, it can be well inferred that these two witnesses had suppressed the truth or real facts during their statements recorded by the Inspector. The trial Court, from the testimony of these witnesses, wrongly concluded that the injuries on the person of Kurra accused had been satisfactorily explained by him on the wrong assumption that such version did figure in the supplementary statement of Rameshwar (PW4) but such is not the case. In a case of cross versions, the inception of the incident and the place of occurrence would always play the dominant role in coming to the conclusion as to which party was the aggressor. In the present case, certainly the injured witnesses had suppressed their own fault in the occurrence while magnifying the part played by the accused party. Under these circumstances, the possibility of the incident having taken place on the roof of the house of the accused cannot be ruled out.

The dealy in lodging the report with the police also obliquely reveals that the complainant party might, be aggressor as in that case only Rameshwar injured witness would like to avoid the police. The occurrence took place at about 500 a.m. Both the injured were removed from the spot in a three wheeler to Civil Hospital, Hissar and passed by the side of the Police Station Saddar Hissar, but strange enough according to Rameshwar PW none of them tried to lodge any report at the police station. The explanation given by him in this regard to the effect that he wanted to get medical aid first is not acceptable in view of the minor nature of the injuries. According to this injured, his statement was recorded by the police in the hospital on the same day at 900 a.m. He specifically denied this suggestion that his statement was recorded at 500 p.m. but according to Head Constable Ishwar Singh (PW7) he had received the intimation at 4/4.30 P.M. from the hospital and thereafter rushed to the hospital. The perusal of statement Ex.P.G of Rameshwar injured shows that the statement was concluded at 500 p.m. Under these circumstances, it appears that either due to excessive zeal, Rameshwar witness is trying to depict the prompt lodging of the report or his statement recorded at 900 a m. has been withheld by the prosecution for the obvious reason that it might have reflected against their present case if produced. The factum that in his statement Ex P.G. Rameshwar has not attributed specific injury to any of the accused, but at the trial he had done so, also reveals his anxiety to implicate all the members of the family of Kurra accused. It is noteworthy that Jaibir and Raghubir are the sons of Kurra Mst. Dhan Kaur is his wife. Thus, it appears that the delay in lodging the FIR has not only resulted in implicating the entire members of the accused family but also in suppressing the fault of the complainant party.

The evidence of Dr. Surinder Singh (PW2) reveals that he had found the following 7 injuries on the person of Rameshwar witness during his medical examination

A lacerated wound of 2 x 1 cm into bone deep on the left side of forehead 2 cm above the eye brow. Clotted blood was present, which was easily washable and fresh blooding was then, present on the wound. Xray skull was advised.

A bruise of red colour of 4 x 3 cms on the left side of face between the nose and the eye super added in abrasions of 2 x 2 cm was present, from where oozing of serosangunous fluid was present Swelling and tenderness was present. Xray face was advised.

A lacerated wound of 41/2 x 1/2 cm into bone deep on the right parietal bone of the scalp in anterio posterior direction 2 cms away from the mid line and 15 cms above the right eyebrow was present. Clotted blood was present which was easily washable. Xray scalp was advised.

Diffused swelling all over the right hand thumb was present. Abrasions of 2 x 2 cm on the back of the thumb was present. Xray right hand thumb was advised.

A bruise of red colour 4 x 3 cm on the back of left upper arm in transverse direction just above the elbow region, was present. Swelling and tenderness was present.

A bruise of red colour of 6 x 3 cms on the back of left eye just below the gluteal region in transverse direction was present.

An abrasion of 2 cm breadth and on the whole length of right leg was present.

All the injuries were declared simple, except injury No. 4, which was found grievous nature as the radiological examination of the right thumb of Rameshwar by Dr. R.P Singal PWI on 21st March, 1985, revealed the fracture of proximal phallanx.

This doctor examined Mst. Bhateri at about 9.00 a.m. and found the following five simple injuries on her person :

A bruise of red colour of 6 x 4 cm on the back of left forearm almost in its middle, superadded abrasions in an area of 3 x 2 cms. was present from where oozing of serosenguleous fluid was present. Diffused swelling around the arm was present. Xray left forearm was advised.

A bruise of red colour of 21/2 cm diameter on the upper part of the right side of the back of chest above the scapular region was present. Swelling and tenderness was present. Xray was advised.

A bruise of red colour of 3 x 6 cms on the back of left side of abdomen in transverse direction was present. Pain and tenderness was present.

An abrasion of 1 x 2 cm on the back of right forearm above the wrist region was present.

Diffused swelling of six x 2 cm on the right side of the parietal bone 7 cms. above the ear was present. Tenderness was Present.

All the injuries of Rameshwar are either located on his forehead, face or on the front side of the other portion of the body. It is not acceptable that if all the accused had assaulted him simultaneously they would have caused injuries while standing on his front side. The number of injuries suffered by both these witnesses is 12 only and in case all the four accused had participated in the assault one would expect large number of injuries. Thus, the medical evidence also supports the version of the accused that all of them had not participated in this assault.

The question that arises, whether Kurra accused had exceeded the rights of self, defence by causing more injuries to the eyewitnesses. In this regard, it is noteworthy that according to Dr. Narinder Chakarwarti (PW6) Kurra accused had suffered the following four injuries on his person :

Contusion 1 x 1/2" left forearm lateral aspect below the elbow joint left. Slight swelling around the injury present,

Patient was complaining of pain right thigh on the lateral aspect midregion. Slight swelling was present. Slight tenderness present.

3 Contusion irregular left side of the back midregion. It was slightly reddish in colour. Slight swelling with tenderness was present.

An abrasion left leg lateral aspect midregion. I x 1/3". Slight swelling with slight tenderness was present.

Thus, so long as he had reasonable apprehension of suffering grievous injuries at the hands of the complainant party, he was well justified in causing injuries to them in view of clause secondly to section 100, Indian Penal Code, as Kurra accused at least had reasonable apprehension of suffering grievous hurt at the hands of the complainant party.

For the foregoing reasons, the impugned order of the trial Court being not sustainable is hereby set aside by accepting Crl. A. Nos. 555SB/1985 and 146B/1986. The revision petition Crl. Revision No. 1554 of 1985 filed by Rameshwar and Mst. Bhateri injured witnesses for enhancement of sentences, consequently fails and is hereby dismissed. The bail bonds and suretybonds of all the appellants are discharged. The amount of fine, if paid by any or them, shall be refunded.