PREM CHAND Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted of an offence under Section 323 Indian Penal Code (for short 'I.P.C.') by an Additional Sessions Judge vide judgment dated 12th October 1984 and sentenced to imprisonment already undergone (i.e. for about a couple of days) and a fine of Rs. 1,000/-, in default of payment of fine he was been awarded rigorous imprisonment for three months. Feeling aggrieved he has come up in appeal against his conviction and sentence.

(2.) THE prosecution case in brief is that there is a Katra bearing house No. 7442, Gali Tel Mill, Paharganj, Delhi, in which several families including those of Mool Chand complainant (PW-1) as well as Prem Chand appellant reside in different portions. On the morning of 21st June, 1981 at about 6.00 a.m. Smt. Chander Kanta (PW-6), niece-in-law of Mool Chand noticed that the quilt which was spread over a cot on which her husband Babu Lal was sleeping had been partially burnt. She enquired as to who had burnt the quilt. The appellant, his son and co-accused Ramesh Chand alias Pappu and other member of his family were present there. However, getting no respond to the query she started hurling abuses at random. The appellant came out and remonstrated as to why she was abusing him. She replied that she was not abusing him but he too insulted in calling names to her. Mool Chand who was then sleeping on the roof too protested and asked the appellant not to hurl abuses. However, Prem Chand, his son Ramesh and his brother Laxmi Narain, who were armed with an iron rod and brick-bats went upstairs. The appellant was having an iron rod (saria) in his hand and the dealt a blow with the same on the head of Mool Chand. The other accused beat him with stones. As a result he started bleeding from his head. All the three accused then lifted him from the cot and threw him down the roof with the result that he fell on the pucca floor of the courtyard and sustained injuries on his head and both the legs. Some unknown persons informed the Police Post Nabi Karim on telephone that exchange of brickbats was going on in a house in Tel Mill Street and on receipt of the same, Head Constable Ved Singh (PW-5) arrived at the Venue of the occurrence. He could that both the parties were pelting brickbats and stones on each other and had sustained injuries. He intervened and asked the parties to behave. He then sent the injured persons numbering eight in all for medical examination after preparing their injury sheets Ex. PW 5/B1 to B-8 alongwith two constables. After sometime, the injured persons came back to the place of occurrence. Ved Singh then recorded statement Ex. PW-1/A of Mool Chand and sent the same to the Police Station for registration of a case under Section 308/34 I.P.C. It was alleged that they had caused injuries to Mool Chand with such intention or knowledge and under such circumstances that if they had caused his death they would have been guilty of culpable homicide not amounting to murder. Further they were alleged to have caused voluntarily simple hurt to Suresh Durga, Jiwan Ram and Madan.

(3.) THE principle submission made by the learned counsel for the appellant is that as many as eight persons belonging to both the parties received injuries in the incident in question but the prosecution has singularly failed to explain the injuries on the persons of the accused and as such no reliance should be placed on the testimony of the prosecution witnesses who, even otherwise, being the complainant himself and his close relatives, are partisan witnesses. He has invited my attention in this context to medico legal certificates (i) Ex. PW-4/A of Smt. Kela Devi, wife of the appellant; (ii) Ex. PW-4/B of the appellant himself; (iii) Ex. PW-4/C of Laxmi Narain, brother and co-accused of the appellant; (iv) Ex. PW-4E of Durga s/o Chhote Lal besides, of course, of course, the medico legal certificates of the complainant party viz. (i) Ex. PW-4/H of complainant Mool Chand; (ii) Ex. PW-4/D of his son Suresh (PW-2); (iii) Ex. PW-4/F of Jiman Ram (PW-3); and (iv) Ex. 4/G of Madan, another son of the complainant Mool Chand. Head Constable Ved Singh, who reached the venue of occurrence, has deposed that when he reached there he found stones being pelted. He intervened and asked the parties to behave. In all eight persons were injured and all of them were present in the common courtyard and pelting stones on each other. So he prepared the injury sheets of all of them and sent them to the hospital for medical examination. The medico-legal reports, adverted to above, have been made on the injury sheets prepared by Ved Singh. Thus, there can be no shadow of doubt that both the parties sustained injuries at one and the same time in the same incident. It may be that as stated by the complainant and other ocular witnesses who are no other than his son Suresh (P-2), his nephew Jiwan Ram (PW-3) and his daughter-in-law Smt. Chander Kanta (PW-6), the appellant may have hit Mool Chand on his head with an iron rod. However, the vital question still remains, viz. who was the aggressor. It would no doubt appear that the genesis of the fight was hurling of abuses by Smt. Chander Kanta on noticing that her quilt had been partially burnt. In this context it may be useful to refer to the suggestion made by the defence to Mool Chand himself that abuses were being exchanged by the wife of Prem Chand and wife of Babu Ram whereupon the complainant party consisting of 15 persons caught hold of Prem Chand and his wife and dealt danda blows. Thus one thing is clear that exchanged of abuses proceeded the dealing of blows. However, according to the prosecution the appellant and his co-accused rushed upstairs and dealt blows to Mool Chand and others. It may be pertinent to notice that according to Mool Chand both Laxmi Narain and Ramesh Chand were having stones with them and they beat him with stones. However, during his cross-examination he stated perhaps in an unguarded moment, that he did not receive any injury with the stones or brickbats. Further he asserted that neither he gave any beating to the appellant, his wife or Laxmi Narayan nor he saw any one beating them. However, he explained that it was because he became unconscious. Obviously having regard to the extensive nature of injuries this facile explanation is difficult to believe. Strangely enough, according to Suresh, his father had received injuries on his hands and legs with brickbats at the hands of the two co-accused of the appellant. However, he too asserted that none of the accused persons nor the wife of the appellant were given beating by them and he did not see them in injured condition. Similarly, Jiwan Ram PW-3, asserted that none of them caused any injury to Prem Chand, his wife or Laxmi Narain and he too did not see any injury on their person. Obviously in view of what Head Constable Ved Singh has stated in this respect as also the fact that the appellant and his companions too had sustained injuries in the same incident, it is rather difficult to swallow the various put forth by the prosecution witnesses without a grain of salt. It may be noticed that both Mool Chand and his wife Kela Devi had beside other injuries sustained a contused lacerated wound each on their scalp whereas Laxmi Narain had sustained two contused lacerated wounds on over his scalp. Likewise Mool Chand had sustained two contused lacerated wounds on his scalp besides, of course, abrasions etc. on other parts of the body. Thus, it is abundantly clear that even the nature of injuries sustained by both the parties was almost similar. Hence it was incumbent upon the prosecution to explain the injuries found on the persons of the accused.