Balli Ram v. State of Haryana

FIR No.394 dated 11.9.1991 under Sections 323/324/326/506 IPC was registered at Police Station City Sirsa. Version of Sarwan Kumar was that on 10.9.1991, he had gone to the house of his son Hans Raj at about 10:00 p.m then sighted Balli Ram while quarrelling with Hans Raj. Balli Ram was saying that he will Crl. Rev. No. 1003 of 2003 [2] demolish the common wall between their houses. Balli Ram was requested not to demolish the wall. Then Balli Ram armed with a kassi gave blows to him (Sarwan Kumar). Occurrence was witnessed by Hans Raj and Santosh Devi. Injured was shifted to hospital, where he was medico-legally examined. Vide judgment of conviction and order of sentence dated

10.7.1999, Balli Ram was convicted under Sections 323,324,326 IPC and was sentenced as under:

1. To undergo imprisonment for a period of one year and to pay a fine of Rs.1000/- for the offence punishable under Section 326 IPC. In default of payment of fine to further undergo rigorous imprisonment for a period of four months.

2. To pay a fine of Rs.500/- for offence punishable under Section 324 IPC and in default of payment of fine to undergo rigorous imprisonment for a period of three months.

3. To pay a fine of Rs.500/- for offence punishable under Section 323 IPC and in default of payment of fine to under rigorous imprisonment for a period of three months. All the sentences were ordered to run concurrently. Against judgment of conviction and order of sentence dated 10.7.1999, appeal was preferred but the same was dismissed by the Additional Sessions Judge, Sirsa vide judgment dated

25.4.2003. Crl. Rev. No. 1003 of 2003 [3] Prosecution examined six witnesses. PW-1, Dr. R.K Bhishnoi had conducted x-ray examination of Sarwan Kumar on 11.9.1991. Fracture of right frontal bone area of skull was detected. PW-4, Dr. R.P Dahiya on 10.9.1991 at 11:15 p.m, had medico-legally examined Sarwan Kumar. Five injuries were noticed. Injuries no. 1, 4 and 5 were caused with blunt weapon. Remaining injuries were caused with sharp edged weapon. Injuries no. 1, 2, 3 and 5 were kept under observation. Injury no.3 on the right side of forehead was found to be grievous. Doctor stated that patient was fully conscious when brought to the hospital. PW-2, Karan singh, Constable is the witness in whose presence kassi was taken into police possession. PW-3, Suresh Kumar, Head Constable was the in- charge of the malkhana with whom kassi was deposited. PW-5, Sarwan Kumar, injured stated that he was present in the house of his son at about 10:00 p.m. Balli Ram and his son were fighting with each other. Balli Ram threatened him that he will demolish the common wall between their houses. He requested not to demolish the wall. Then Balli Ram gave kassi blow on different parts of his body. He became unconscious and fell down. Later on he was shifted to hospital where he was medico-legally examined. PW-6 Hans Raj is the son of Sarwan Kumar who had witnessed the occurrence and has supported the version of Sarwan Kumar by saying that Balli Ram had caused injuries with a kassi to his father, Sarwan Kumar. Crl. Rev. No. 1003 of 2003 [4] Balli Ram when examined under Section 313 Cr.P.C then stated that he was falsely implicated in this case. He had purchased house from the complainant. Entire payment was made to the complainant and his son. But they were demanding more money. On the fateful day, there was argument amongst the parties and there was a fight. Sarwan Kumar and his son had opened the attack. In the struggle, Sarwan Kumar fell down and head of Sarwan Kumar was hit against `khunta'. Sarwan Kumar and his son Hans RaJ threatened to throw him out of the house. I have heard the learned counsel for the petitioner, learned State counsel and have gone through the evidence on the file. Learned counsel for the petitioner argued that occurrene is dated 10.9.1991. Whereas, FIR is dated 11.9.1991. There is delay in lodging the FIR. There are number of discrepancies which cannot be reconciled. Sarwan Kumar while appearing in the Court stated that two injuries were caused to him and on receipt of injuries he became unconscious. Next day he regained consciousness and only once his statement was recorded. Blood had fallen on the ground but the blood was not lifted from the spot for the reasons best known to the Investigating Officer. Investigating Officer was not examined. Weapon of offence was also not produced in the Court. Lastly argued that occurrence was about 20 years back. At that time, petitioner was 41 years old. Now he is about 60 years old. He is the first offender and belongs to a poor family. There was a compromise amongst the parties and the compromise is on the file. Crl. Rev. No. 1003 of 2003 [5] Learned State counsel argued that occurrence is an admitted fact. There was a dispute regarding demolition of common wall. Defence version of the petitioner is that there was a fist fight amongst the parties. Sarwan Kumar had a fall and received injuries by striking against “khunta”, evidence was rightly scrutinized by the trial Court as well as the First Appellate Court. Revisional Court is not to reassess or reevaluate the evidence. I have gone through the evidence on the file. I am of the opinion that evidence was rightly scrutinized by the trial Court as well as the First Appellate Court. Occurrence is an admitted fact. The only dispute is whether Sarwan Kumar received injuries by fall against “Khunta” or by kassi blows given by Balli Ram. Five injuries were noticed on the person of Sarwan kumar. No question was put to the doctor that all the injuries were possible by fall against the “khunta”. No case of the petitioner that injuries were received by repeated falls. Injury no.3 is on the forehead. Fracture of right frontal bone area of skull was noticed. Injury no.5 was on the back of chest in scapular area. According to the prosecution, house of Hans Raj son of Sarwan Kumar was adjoining the house of the petitioner. Petitioner was intending to demolish the common wall. Defence version of the petitioner is that house was purchased from the complainant-party against payment but complainant-party was demanding more payment. On the day of occurrence, there was fight amongst the parties. Complainant-party had attacked the petitioner. In the struggle, Sarwan Kumar fell down and received injuries. Injured and Crl. Rev. No. 1003 of 2003 [6] the eye witnesses appeared in the Court as PWs. There are minor discrepancies in the statements of PWs. In Court, injured stated that he received two injuries then became unconscious. Next day he had regained consciousness. Blood stained earth was not lifted from the spot. Minor discrepancies are not material because the petitioner when examined under Section 313 Cr.P.C then admitted that there was a fight amongst the parties. Only question is whether injuries were received by fall or by kassi blows given by the petitioner. As discussed earlier, five injuries were noticed on different parts of the body. Number of injuries cannot be by a single fall, particularly, when one injury was on the backside and other were on the front side. No case of the petitioner that Sarwan Kumar received injuries by repeated falls. Suggestion was not given to the witnesses that all injuries were received by single fall against “khunta”. As per defence version, petitioner had purchased house from the complainant-party. Allegation of the complainant-party was that there was a common wall. Petitioner was threatening the complainant-party to demolish the wall. Sale deed was not produced on the record to show that house was purchased few days or few months before the occurrence. If we presume that house was purchased by registered sale deed then sale deed could easily be produced to show that there was no common wall. Evidence rather shows that there was a dispute amongst the parties. According to the complainant-party, petitioner was threatening to demolish the wall and when complainant-party opposed then he caused injuries to Sarwan Kumar. On the other hand submission of the petitioner is Crl. Rev. No. 1003 of 2003 [7] that he had purchased house by registered sale deed against payment. But complainant-party was demanding more money and attacked the petitioner. In this struggle, Sarwan Kumar fell down and received injuries. In case the occurrence had not taken place as per prosecution story then petitioner should have reported the matter to the police. When injuries noted by the doctor cannot be self-suffered or self-inflicted and injuries were not possible by a single fall then defence version is not correct one. After recording the statement of Sarwan Kumar on

11.9.1991, statement was sent to the police station, on the basis of which, formal FIR was recorded. Later on, the appellant was arrested. Investigating Officer failed to appear in the Court despite number of opportunities afforded to the prosecution. Ultimately evidence of the prosecution was closed by order. So non- appearance of the Investigating Officer is not fatal because he was not the eye witness. He had simply recorded the statement of Sarwan Kumar and after that prepared rough site plan and had affected recovery of weapon. Weapon of offence was not produced in the Court but non-production of weapon of offence is not fatal. If petitioner was of the view that injuries cannot be caused with a kassi then petitioner could easily request the Court to seek opinion of the doctor as to whether injuries with the weapon were possible or not. When injured and the eye witness appeared at that stage also, there was no request to produce the weapon. Weapon of offence, if not produced then story is not to be ignored when there is direct evidence. Crl. Rev. No. 1003 of 2003 [8] Because sometimes after committing the crime, weapon is destroyed then due to non-production of weapon case is not to be thrown out. Production of case property is only a corroborative piece of evidence. Petitioner was not prejudiced with the non-production of weapon. Entire evidence on the file was rightly scrutinized by the trial Court as well as the First Appellate Court. Revisional Court is not to reassess or reevaluate the evidence when a question of law is involved or the Court is of the opinion that evidence was misread only then, revisional Court has a scope to intervene. Statements of the injured and the eye witnesses shows that petitioner had caused injuries to Sarwan Kumar on 10.9.1991 while present in the house of Hans Raj. Impugned judgment is upheld on the point of conviction. Occurrence is dated 10.9.1991. At that time, petitioner was 41 years old. So at this stage, petitioner is about 60 years old. Peittioner is the first offender and belongs to a poor family. The petitioenr's house is adjoining the house of the complainant-party. There was a compromise amongst the parties and the compromise is on the file. Petitioner has already undergone three months and 17 days out of actual sentence of one year. Petitioner is to become hard criminal, if again sent to jail to undergo remaining portion of sentence. Ends of justice would be fully met if lenient view is taken. Accordingly, sentence of the petitioner is reduced to the already undergone by him. However, petitioner is directed to deposit Rs.25,000/- more within a period of two months before the trial Court. If Rs.25,000/- is deposited in the Court the same is to be disbursed to the injured as compensation. In case amount of Rs.25,000/- is not Crl. Rev. No. 1003 of 2003 [9] deposited within two months before the trial Court then revision petition would stand automatically dismissed. For the reasons recorded above, with some modification on the point of sentence, revision petition stands dismissed. May 19, 2010 ( JORA SINGH ) JUDGE