Nitya Nand vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that Rattan Lal is resident of village Ratta Kalan. He is serving as Head Master in Government Primary School, Nangal Malal. He is handicapped. He owns Nohra in Village Ratta Kalan. He had some dispute respecting that Nohra with Raja Ram who is the real brother of said Rattan Lal. On 15.4.1989 at about 56 p.m., Rattan Lal along with his son Yash Pal aged 81/2 years was gong back to his plot No. 284 from that Nohra. Raja Ram, Nitya Nand and his wife Urmila came in plot No. 284. Nitya Nand started putting earth in the foundations of the plot, which had been dug by Rattan Lal. Altercation took place between Rattan Lal and Nitya Nand. Nitya Nand had a danda in his hand. He gave danda blow on the forehead of Rattan Lal. Nitya Nand gave a slap on the left ear of Rattan Lal. Rattan Lal became deaf from the left ear. Rattan Lal fell down. Nitya Nand rubbed him with his knees. In the meantime, Rattan Lal''s wife and son Yash Pal came there and tried to rescue Rattan Lal. Raja Ram caught hold Rattan Lal''s wife. Urmila lifted Yash Pal in her arms and threw him on the stones collected by Rattan Lal for filling up the foundations of the plot. Yash Pal suffered fracture in his right wrist. On hearing the noise raised by Rattan Lal, his wife and son, Hari Singh son of Duli Chand and several others came there and rescued Rattan Lal, his wife and son. Thereafter Rattan Lal and his son went to General Hospital, Narnaul where they were directed to go to PHC Ateli and Police Station, Ateli. Rattan Lal went to PHC Ateli and got himself and his son medically examined. Rattan Lal went to Police Station, Ateli with a view to lodging the report. Thanedar Azad Singh misbehaved with him and recorded report lodged by him as he (Azad Singh) wished. He did not record his version as he (Rattan Lal) wished. He did not take any action and awaited Xray report from General Hospital where Rattan Lal and his son Yash Pal were got radiologically examined. On 1.6.1989, Rattan Lal instituted the complaint against Raja Ram, Nitya Nand and his wife Urmila under Sections 323/325/34 IPC. After holding preliminary enquiry into the allegations of the complaint, Additional Chief Judicial Magistrate, Narnaul vide order dated 5.9.1990 found sufficient grounds to proceed against the accused under Sections 323/325/34 IPC.

Accused were charged under sections 323/325/34 IPC. They pleaded not guilty to the charge.

On the conclusion of the trial, Additional Chief Judicial Magistrate, Narnaul found the charge proved against them. He accordingly convicted them under Sections 323/325/34 IPC vide order dated 19.10.1995. Vide order of the even date, he sentenced each of them to undergo R.I. for three months under Section 323 IPC. He sentenced them to undergo R.I. for two years and to pay a fine of Rs. 500/ each under section 325 IPC. In default of payment of fine, he sentenced them to undergo further R.I. for six months. He ordered that out of the amount of fine, if recovered, Rs. 1,000/ shall be paid to Yash Pal injured and Rs. 500/ to Rattan Lal injured as compensation. He ordered the substantive sentences to run concurrently.

Aggrieved, Nitya Nand and Urmila went in appeal to the Court of Session namely (Criminal Appeal No. RT8 of 20.10.1995/29.7.1998) and Raja Ram went in separate appeal namely Criminal Appeal No. 1 of 10.11.1995/6.1.1998.

Learned Additional Sessions Judge, Narnaul dismissed both the appeals vide order dated 6.3.1999.

Aggrieved Nitya Nand, Urmila wife of Nitya Nand and Raja Ram have come up in revision to this Court against the order of Additional Sessions Judge, Narnaul, whereby their appeals against conviction and sentences were dismissed by him.

I have heard the learned counsel for the revision petitioners and have gone through the record. Learned counsel for the petitioners submitted that there was no sharing of common intention with Smt. Urmila by Raja Ram and Nitya Nand and the throwing of the child Yash Pal son of Rattan Lal was the own act of Urmila. Towards this act of Urmila, there was no contribution by Raja Ram and Nitya Nand. It was submitted that as the version of the complaint goes, on 15.4.1989 at about 56 p.m., Rattan Lal along with his child Yash Pal aged 81/2 years was going back to his plot No. 284 from that Nohra. Raja Ram, Nitya Nand and his wife Urmila came there at plot No. 284. Nitya Nand started putting earth in the foundations of that plot, which had been dug by Rattan Lal. Altercation took place between Rattan Lal and Nitya Nand. Nitya Nand had danda in his hand. He gave danda blow to Rattan Lal, which fell on his forehead. Nitya Nand gave a slap on the left ear of Rattan Lal. Rattan Lal became deaf from left ear. Rattan Lal fell down. Nitya Nand rubbed him with his knees. In the meantime, Rattan Lal''s wife and son Yash Pal came there and tried to rescue him. Raja Ram caught hold Rattan Lal''s wife. Urmila lifted Yash Pal in her hands and throw him on the stones collected by Rattan Lal for filling up the foundations of his plot. It was submitted by the learned counsel for the petitioners and rightly so that how could Raja Ram and NItya Nand be aware that Urmila would left that child and throw him on the stones and fracture his wrist. Urmila was not carrying any weapon with her. Nitya Nand and Raja Ram did not touch that child. Raja Ram caught hold Rattan Lal''s wife. Nitya Nand gave danda blow on the forehead of Rattan Lal. Nitya Nand gave a slap on the left ear of Rattan Lal. Raja Ram, Nitya Nand and Urmila can be said to have shared each other''s intention so far as the injuries of Rattan Lal are concerned. Raja Ram and Nitya Nand cannot be said to have shared the intention of Urmila, which was Urmila''s own act. In Sushil v. State of U.P., 1995(1) RCR 158, their Lordships of the Hon''ble Supreme Court held that where coaccused T was not armed with any weapon nor he is alleged to have made any assault on the deceased and there is no evidence that he was aware of the fact that coaccused S&R were armed with knives which may be used by them in the crime and the prosecution evidence is also silent on the point whether S&R took out the knives suddenly with or without the knowledge of T or came with knives openly and visibly and inflicted knife injuries on the victim. In these facts and circumstances, it is difficult to say with certainty as to what extent if at all T shared the common intention with other accused S&R. In view of these facts and circumstances, the Hon''ble Supreme Court gave benefit of doubt of Tapeshwar.

In my opinion, the submission made by the learned counsel for the petitioner is quite forceful and is accepted. Nitya Nand is held liable under Section 323 IPC. Raja Ram is held liable under Section 323/34 IPC. Urmila is held liable under Section 325 IPC. Raja Ram is aged 65 years. He is thus an old man. To him, there is no attribution that he gave any injury. He is, therefore, ordered to be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 on his furnishing personal bond in the sum of Rs. 2,000/ together with surety bond of that amount for a period of one year. During this period he shall be of good behaviour and keep peace. So far as Nitya Nand is concerned, to him only simple injury on the head of Rattan Lal has been attributed and also slap on his left ear. I think he should also be released on probation of good conduct. He shall furnish personal bond and surety bond in the sum of Rs. 2,000/ for a period of one year under Section 4 of the Probation of Offenders Act, 1958. During this period, he shall keep peace and be of good behaviour. They shall pay Rs. 1,500/ each as compensation to Rattan Lal. Imposition of fine on them by the learned Courts below is set aside. If fine has been deposited by them, that will be treated as compensation.

Urmila is aged 36 years. She should not be released on probation of good conduct as she appears to be without any compassion. What was the fault of that child Yash Pal, aged 81/2 years, whom she picked up and threw on stones causing fracture in his right wrist ? She is a woman aged 36 years. I think some leniency should be shown to her in the matter of sentence. She is sentenced to three months R.I. and to pay fine of Rs. 4,000/ or in default to undergo further R.I. for one month under Section 325 IPC. Entire amount of fine, if recovered, shall be paid to Yash Pal son of Rattan Lal. Subject to this reduction/modification/variation in sentence, this revision fails and is dismissed.

Revision dismissed.