Om Parkash vs State of Haryana

S.S. Sodhi, J.

There are about 27 acres of panchayat land in village Bodia Khera, which are auctioned annually for a years at a time. Part of this land was on lease with the appellants Roop Chand and Lal Chand when auction for the year 1982 was arranged to be held on April 7, 1982. On this occasion, a large crowd had collected for the purpose. Amongst them being Kurda Ram, Risal Singh, Ballu Ram ExM.L.A., Gurdial Singh Sarpanch, Chander Bhan, Secretary of the Panchayat and several others. There were over 100 person present there at that time.

According to the prosecution, the proceedings for the auction started at about 10.45 a.m. when the Panchayat Secretary asked the prospective bidders to deposit their security for being entitled to bid. At that stage, Ballu Ram enquired regarding the terms of the auction, particularly when the turn of water would be given to the auctionpetitioner. Lal Chand intervened to say that he would not allow any one to take the turn of water while his crops were standing. Kurda Ram, thereupon, asked the Panchayat Secretary to fix a date for the turn of water for the auctionpurchaser. AppellantBaldev Singh is then said to have turned to Kurda Ram and asked why he had come to the auction when he was penniless and also why had he brought his gun. Kurda Ram replied that he had Rs. 10,000/ with him and showed him this amount by taking it out of the bag which he was carrying. As for the gun he said that he had brought it as he was to bid at the auction. Baldev Singh then turned to the other appellant, that is, Lal Chand and others and asked them to bring lathis and to catch hold of Kurda Ram and break his gun. Saying this, Baldev Singh caught hold of Kurda Ram by his left arm while Amar Singh caught him by his right arm. Roop Chand caught hold of his gun while Ami Lal snatched away Kurda Ram''s bag containing the money. Lal Chand and Sheo Chand brought a gandasi each while Udmi and Kishan came there with lathis. Dharam Pal, Ramji Lal and Om Parkash were also there but were empty handed. Baldev Singh gave a tooth bite on the left arm of Kurda Ram as a result of which his gun fell on the ground, which was picked up by Roop Chand who broke it by striking it against the wall of the bullfarm. Lal Chand gave a gandasi blow on the head of Kurda Ram while Sheo Chand caused him a similar injury on his forehead. As Kurda Ram was about to fall, Udmi gave his lathis blow on his back on the right side and when he had fallen down, Ramji Lal gave him a kick blow near his left eye.

Seeing this, Risal Singh and others stepped forward in an attempt to rescue Kurda Ram. Risal Singh was given a lathi blow by Udmi and Kishan, while Dharampal and Om Parkash gave slaps and first blows to both Kurda Ram and Risal Singh.

The bag of Kurda Ram, which was snatched away by Ami Lal is also said to have contained 14 cartridges. As for Roop Chand, he is not only said to have broken the gun of Kurda Ram, but also to have taken it away after the incident.

Kurda Ram, was after the incident, brought to the Civil Hospital, Fatheabad in a rickshaw by Rasal Singh and his brother Hawa Singh.

According to P.W.1Dr. Verinder Chaudhary Medical Officer at the Civil Hospital, Fatheabad, he examined Kurda Ram at 12.30 p.m. on April 7, 1982. Kurda Ram was found to have four injuries on his person. There being :

(1) An incised wound of 3 cm. x 0.5 cm. over the medial line at the parietal region. Wound was obliquely placed. Bleeding was present. Tenderness was present. Wound was advised for Xray.

(2) Reddish contusions three in number of the size of 4.5 cm. x 2 cm. oves the posterlateral to the lower half of the right chest. Severe tenderness was present. Surgical emphyseme over this area was present. Wound was advised for Xray.

(3) An incised wound of 1 cm. x 0.25 cm. over the right forehead just 2.5 cm. above from the right eyebrow.

(4) A reddish contusion of 3 cm. x 2.5 cm. over the lateral and upper one third of the left arm.

Injury No. 2 was found to be grievous while the other three were simple in nature. Injuries Nos. 1 and 3 were caused by sharp edged weapon while the others two were blunt weapon injuries. The doctor opined that the duration of these injuries was within six hours. Later, at about 12.45 p.m. on the same day, Dr. Chaudhary also examined Risal Singh and found two injuries on his person. These being :

(1) A reddish contusion of 5 cm. x 2 cm. over the middle and left to the back. Slight tenderness was present.

(2) A reddish contusion of 2 cm. x 1 cm. over the posterior and lower one third of the left arm.

Both these injuries were found to be simple in nature and caused by a blunt weapon.

After examining Kurda Ram and Risal Singh, Dr. Chaudhary sent ruqa Exhibit PC to the Station House Officer, Police Station Fatheabad regarding the admission of these two injured in the hospital.

It was on receipt of ruqa exhibit PC that the Investigating Officer P.W.7 S.I. Sube Singh came to the hospital and after obtaining the opinion of the doctor that Kurda Ram was not fit to make a statement that he recorded the statement of Risal Singh exhibit PG, on the basis of which the first information report came to be recorded. SubInspector Sube Singh also deposed to the arrest of the appellants and the production before him by Roop Chand of the broken gun of Kurda Ram and 14 live cartridges.

The case of the prosecution rests upon the testimony of the injured P.W.6 Kurda Ram and P.W.4 Risal Singh. Both these witnesses deposed as per the prosecution cases.

When examined under Section 313 of the Code of Criminal Procedure, 1973, the appellantsAmar Singh, Amin Lal, Ramji Lal, Lal Chand, Sheo Chand, Dharam Pal, Udmi Chand and Kishan put forth the plea that they had been falsely implicated in this case and denied that either of them was present there at the time of the incident. AppellantRoop Chand cameforth with a counterversion, namely; that at the auction, Kurda Ram and Ballu Ram had both come there with their licensed guns while Rishal Singh was armed with a lathi. Kurda Ram announced there that one who takes the land, would irrigate his fields from the day of the auction. This was opposed by him (Roop Chand). At this Kurda Ram and Risal Singh got enraged and Kurda Ram then pointed his gun towards him while Risal Singh exhorted him to fire. Kurda Ram fired a shot, but it did not hit any one. Risal Singh aimed a lathi blow at Om Parkash, but this blow too did not hit him. Kurda Ram reloaded his gun and again fired. This shot too did not hit any one, but at this, he (Roop Chand) gave a kulhari blow to Kurda Ram as a result of which his gun fell on the ground, which was then picked up by Risal Singh, who tried to give a blow with the butt thereof to his brother Om Parkash, who retreated and the gun, instead hit the ground and then broke. On Parkash then gave a lathi blow to Risal Singh in selfdefence and also snatched away the gun from Risal Singh. A similar plea was put forth by the two other appellantsBaldev Singh and Om Parkash.

Three witnesses were examined in defence, they being, D.W.1, Ballu Ram Ex.M.L.A., D.W.2 Bhiyan Ramfather of the appellant. Om Parkash and D.W.3 Chander Bhan Secretary of the Panchayat. All these witnesses deposed as per the defence version namely; that Kurda Ram had come to the auction with a gun and after an altercation over the turn of water, he had fired a shot at Roop Chand which missed him and when Risal Singh aimed a lathi blow at Om Parkash, Om Parkash snatched the lathi from him. Later, when a second shot was fired by Kurda Ram at Roop Chand, Roop Chand gave his a kulhari blow on his forehead in selfdefence, whereupon Kurda Ram fell down and his gun was then picked up by Risal Singh who aimed blow with it on Om Parkash, but it instead hit the ground and broke. The gun was then taken away by the appellantBaldev Singh. A bag was found lying on the ground which contained cartridges. That too was taken away, implying, for being produced before the police.

The trial Judge taking into account the material on record accepted the prosecution version and convicted the appellants as charged and sentenced them to various terms of imprisonments. It is the validity and correctness of these convictions and the sentences imposed upon the appellants that are now sought to be questioned in appeal.

It would be seen that it is the common case of the parties that the incident arose all of a sudden when a crowd had collected for the auction of the Panchayat land, and a quarrel unexpectedly erupted during the altercation concerning the turn of water. Different versions of what happened thereafter have, however, come forth from the side of the prosecution and the defence.

In seeking to assail the prosecution case, counsel for the appellants, in the first instance took up the matter relating to the snatching away of the bag of Kurda Ram, which, as per the prosecution version, contained Rs. 9,400/ and 14 cartridges. The point sought to be canvassed in this behalf being that there was no occasion for Kurda Ram to have been carrying this amount with him at that time, in as much as all that was required to enable him to take part in the auction was a deposit of Rs. 100/ as security. The answer to this is, however, provided by the testimony of the Panchayat Secretary D.W. 3 Chander Bhan, who stated in crossexamination that a resolution had been passed by the Panchayat that the auction amount should be deposited with the Panchayat immediately after the auction. This being so, it was clearly incumbent upon Kurda Ram to have had money with him, if he wanted to take the Panchayat land on lease. It is also pertinent to note here that P.W.4. Risal Singh, too had deposed that he was also carrying Rs. 8,000/ to Rs. 10,000/ with him at that time. This being so, the fact that Kurda Ram was carrying the money was indeed a natural and probable circumstances.

Adverting next to the medical evidence, it was strenuously argued by the counsel for the appellants that it did not support the prosecution case in as much as none of the injuries on the person of Kurda Ram could be attributed to a toothbite as was alleged to have been given to him by the appellantBaldev Singh, which resulted in the gun falling on the ground. Further, a point was also made with regard to the two incised injuries; one on the head and the other on the forehead of Kurda Ram; that considering the nature and extent thereof, neither could be said to have been caused by a gandasi.

According to the prosecution, the injury caused by the toothbite was the one described by P.W.1Dr. Verinder Chaudhary as a reddish contusion 3 cm. x 2.5 cm. over the lateral and upper 1/3rd of the left arm. No specific question was asked from the doctor to suggest that this injury could not have been caused by a toothbite. What was suggested was that in the case of a bite on the arm, there would be some marks of teeth or it would be a circular one, to which the doctor replied that this possibility could not be ruled out; but volunteered, that there an be a contusion too. This would imply that even a contusion like the one found by the doctor, on the left arm of Kurda Ram, could have been caused by a toothbite.

As regards the two incised injuries on Kurda Ram, according to the doctor, these had been caused by a sharpcutting weapon. Gandasi is no doubt a heavy weapon and if used with force, can cause serious injury but whether or not a particularly incised injury is caused by a gandasi would depend upon the force used besides, of course, the type of edge it had. From the nature and extent of the two incised injuries on the person of Kurda Ram, it cannot be inferred that they could not have been caused by a gandasi.

A point was also sought to be made with regard to the grievous injury on the person of Kurda Ram which consisted of a fracture of his Xth rib. The argument being that the prosecution evidence had not accounted for this injury. A reading of the testimony of P.W.6 Kurda Ram would, however, show that he clearly mentioned Udmi Chand as having caused him this injury when he gave him lathi blow on his back and right side. The medical evidence thus does not run counter to the prosecution version.

The main attack upon the prosecution version was, however, founded upon the testimony of the three witnesses examined in defence. Great stress was laid here upon the fact that the presence of all these three witnesses, namely; D.W.1 Ballu Ram; D.W.2. Bhaiya Ram and D.W.3 Chander Bhanthe Secretary of the Panchayat, was either admitted by the prosecution witnesses or was, at any rate, natural and probable and, therefore, their testimony deserves reliance at least to the extent of creating a doubt in the prosecution version rendering it unsafe to be relied upon. A reading of the statements of the three defence witnesses would, however, show that the trial Judge rightly discarded their testimony as being unworthy of belief. In the case of D.W.1Ballu Ram, it is pertinent to note that he was cited as one of the accused in the complaint filed by the appellantRoop Chand against Kurda Ram and Risal Singh. In crossexamination, however, he chose to deny knowledge of the contents of the complaint when it was suggested that it had been alleged there that he too had fired his gun towards the opposite party, that is, the present appellants. He also pleaded lapse of memory when it was suggested that in his bail application, he had alleged that all the facts stated in the complaint against him were false. It is pertinent to note that it is the allegations in that complaint which now form the defence version here a version which this witness had alleged to be false in his bail application, which he has now comeforth to depose to on oath. The testimony of such a witness is clearly not entitled to any credence.

Turning now to the Panchayat Secretary D.W.3 Chander Bhan, the significant aspect of his testimony is that he has comeforth to depose to the defence version for the first time when he came into the witness box. He did not join in the investigation of this case. No statement of his was recorded by the police and what is more, in the report, which he states he made to the Block Development Officer, no mention was made there of any firing having occurred in this incident nor is there any such mention in the proceedingsbook. As regards D.W.2 Bhaiya Ram, as mentioned earlier is the father of the appellant. Om Parkash and thus obviously an interested witness.

Further, the defenceversion, as putforth by the appellants is on the face of it highly improbable inasmuch as Kurda Ram is alleged to have fired two shots in a crowd of over 100 persons and yet not even a pallet hit any one.

What is more, it has come in evidence that no blood stained earth could be recovered from the spot, as the ground was sandy, yet the defence would have us believe that Kurda Ram''s gun broke merely by it hitting the ground when Risal Singh tried to cause an injury with it to the appellantOm Parkash.

Such being the circumstances and evidence there can be no escape from the conclusion that the prosecution has proved, beyond all reasonable doubts that the incident occurred as per the version putforth by it.

The matter that now calls for consideration is with regard to the offences said to have been committed by the appellants. Here, it was forcefully argued by the counsel for the appellants that in the circumstances, no offence under Sections 394 and 397 of the Indian Penal Code could be said to have been committed by any of the appellants in respect of the snatching away of the bag of Kurda Ram by Ami Lal. Reference was, in this behalf made to most. Indrasana Kuer v. Sia Ram Pandey and others, 1970 Crl. L.J. 647, where it was observed that it was clear from the definition of robbery that there should be use of force or attempt to use force for the purpose of committing theft or in carrying away or attempting to carry away property obtained by theft. Mere fact that the assault and the theft took place in the same transaction is not enough. The assault must be to facilitate commission of theft. To a similar effect were the observations of Kozhipalliyalil Muhammad v. State, 1974 Crl. L.J. 204, where it was held that to constitute robbery, it is necessary that the act must be in order to the committing of the theft or in carrying away or attempting to carry away the property obtained by theft and the hurt or the attempt to hurt must have been caused voluntarily for that end in view. Counsel, in this context, laid stress upon the fact that the manner in which the incident occurred, the assault upon Kurda Ram could not be taken to have been with the object of committing theft of the money that he was crying and consequently no offence of robbery punishable under Sections 394 or 397 of the Indian Penal Code could be said to have been committed by any of the appellants. This is indeed a contention which must prevail and consequently the conviction of the appellants under these two Sessions of the Indian Penal Code, namely Sections 394 and 397, cannot be sustained and must instead be substituted by their conviction under Section 394 and 3979 read with Section 149 of the Indian Penal Code.

An attempt was also made to argue that no conviction under Section 148 of the Indian Penal Code could be sustained, inasmuch as the persons who had collected there, at the time of the incident, did not constitute an unlawful assembly. This is, however, a contention devoid of merit as it is wellsettled that an assembly lawful at its inception can turn itself into an unlawful assembly to render its members liable under Section 148 of the Indian Penal Code and in the circumstances in which the incident occurred, the applicability and the correctness of the conviction under Section 148 of the Indian Penal Code cannot be questioned or doubted.

In the result, the conviction of all the appellants under Section 148 of the Indian Penal Code (hereinafter referred to as `the Code''), is hereby upheld and affirmed. Conviction under Sections 394 and 397 of the Code of the appellants are hereby set aside and are instead substituted by the conviction of the appellant Ami Lal under Section 379 and of the other appellants under Section 379 read with Section 149 of the Code. All the other conviction of the appellants are however, upheld and confirmed.

In the matter of sentence, considering the fact that the incident had occurred all of a sudden, without any premeditation, some reduction is indeed called for. Accordingly, the sentence imposed upon the appellant Udmi Chand under Section 325 of the Code is reduced to one year''s rigorous imprisonment with a fine of Rs. 1,000/, in default of payment of which he shall, undergo further one year''s rigorous imprisonment while that of the other appellants under Section 325 read with Section 149 of the Code is also reduced accordingly. The sentence imposed upon Sheo Chand and Lal Chand under Section 324 of the Code is reduced to nine months rigorous imprisonment and a fine of Rs. 750/ each in default of payment of which they shall undergo further nine month''s rigorous imprisonment while that of the other appellants under Section 324 read with Section 149 of the Code is also reduced in the same manner. The sentence imposed upon the appellantsKishan, Udmi Chand and Baldev Singh under Section 323 of the Code is reduced to three months'' rigorous imprisonment with a fine of Rs. 250/ in default of payment of which they shall undergo further one months'' rigorous imprisonment, while that of the other appellants on two counts under Section 323 read with Section 149 of the Code is reduced likewise.

Finally, the appellant Ami Lal is sentenced to one year''s rigorous imprisonment under Section 379 of the Code with a fine of Rs. 3,000/ in default of payment of which he shall undergo further one year''s rigorous imprisonment and the other appellants are hereby sentenced under Section 379 read with Section 149 of the Code to one year''s rigorous imprisonment and a fine of Rs. 500/ each in default of payment of which they shall undergo further three months'' rigorous imprisonment. Out of the fine, if recovered, a sum of Rs. 2,000/ shall be paid, as compensation, to the injured, Risal Singh and the balance to the other injuredKurda Ram.

All the sentences of imprisonment shall, however, run concurrently.

The appellants, who are on bail are directed to surrender to their bail bonds to undergo the unexpired period of the term of imprisonment imposed upon them.

This appeal is accordingly partially accepted.

Appeal partly accepted.