IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 2158 of 2005 Date of decision: December 16, 2010 Sant Kumar and others .. Petitioners Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. N.K. Sanghi, Advocate with Mr. Ashish Ahuja, Advocate for the petitioners. Mr. K.C. Gupta, DAG, Haryana for the respondent. A.N. Jindal, J The accused- petitioners were tried for causing simple and grievous injuries to Kanhaiya Lal, Om Parkash and Omkala. Consequently, vide judgment dated 22.1.2000, the trial court convicted and sentenced the accused to undergo rigorous imprisonment for 2- ½ years and to pay fine of Rs.500/- each under Section 326/34 IPC, rigorous imprisonment for six months under Section 323/34 IPC. However, the Appellate Court while holding the occurrence as a result of free fight, acquitted Krishan Kumar, Prem Lata and Shakuntla under Section 326 IPC. However, while convicting them under Section 323 IPC, released them on probation. However, conviction of accused Sant Kumar under Section 326 IPC was ordered to be maintained with the modification in the sentence which was reduced to two years. The case was registered on the statement of Om Parkash injured, who disclosed that their house and the house of the accused Krishan Kumar are situated in the opposite direction. There was a dispute about the raising of the construction in the common passage, however, about a months prior to the occurrence, the same was settled due to the intervention of the Sarpanch of the village. On 8.6.1992, at about 6/6.30 A.M. the complainant Om Parkash along with his uncle Kanhaiya and sister Omkala was present in his house. The accused Krishan Kumar started digging foundation in the common passage. However, his uncle Kanhaiya asked Krishan Kumar not to do so Criminal Revision No. 2158 of 2005 -2- *** and to honour the decision of the Panchayat. In the meantime Sant Kumar armed with farsi, Prem Lata and Shakuntla empty handed arrived there and quarrel arose. On hearing the sound, the complainant party also came out of the house. Thereafter, the accused Sant Kumar while exhorting to teach a lesson for not allowing them from digging foundation in the common passage inflicted farsi blow below the left eye of Kanhaiya. Accused Krishan Kumar inflicted lathi blow on the legs of Kanhaiya. However, when the complainant and his sister Omkala tried to rescue his uncle Kanhaiya, accused Krishan Kumar inflicted a lathi blow on the head of Omkala. The accused Prem Lata pelted stones which hit the right foot of Omkala. The accused Shakuntala inflicted leg and fist blows to Omkala. When the complainant tried to rescue his sister, then Krishan Kumar gave a stick blow thrust-wise on his front tooth and the accused Sant Kumar inflicted farsi blow on his right foot. Hue and cry raised by the injured had attracted Ranbir Singh and Sri Ram who had witnessed the occurrence and had rescued the injured. On the aforesaid statement of Om Parkash, case was registered and investigated. The Investigating Officer collected the medico-legal report, recorded the statements of the witnesses. The doctor had declared the injury No.1 on the person of Kanhaiya as grievous in nature. On submission of the charge sheet, the accused persons were charged under Sections 326/323/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Dr. Ramotar Gupta (PW1), Om Parkash complainant (PW2), ASI Jawahar Singh (PW3), Dr. H.R. Yadav (PW4), HC Mahipal (PW5), Kanhaiya (PW6), Omkala (PW7) and Sri Ram (PW8). In their statements under Section 313 Cr.P.C. the accused denied all the allegations and pleaded their false implication in the case. However, they took the plea that they had been falsely implicated in the case. In their defence, they examined Binu (DW1), Bhup Singh (DW2) and Dr. Pardeep Kumar Kukhija (DW3). Both the witnesses namely Binu (DW1) and Bhup Singh (DW2) have deposed that on the fateful day, quarrel took place amongst the women folk of the accused as well as complainant Criminal Revision No. 2158 of 2005 -3- *** party wherein Kanhaiya had sustained injuries on his face. Dr. Pardeep Kumar Kukhija (DW3) has stated that during the occurrence, the accused Prem Lata, Shanti wife of Gangadeen, Sant Kumar and Krishan Kumar had also suffered injuries. On appraisal of the entire evidence, the trial court convicted and sentenced the accused accordingly. However, in appeal, the First Appellate Court acquitted Krishan Kumar, Prem Lata and Shakuntala under Section 326 IPC and confirmed their conviction under Section 323 IPC and conviction of Sant Kumar under Section 326 IPC was upheld. Arguments heard. Record perused. The complainant party has not preferred any appeal or revision against acquittal. Mr. N.K. Sanghi, Advocate for the petitioner has given much stress on the point that it is not a case of free fight, but actually the complainant party was the aggressor as they had no right to object Krishan Kumar from raising foundation over the common passage. The land was not owned by the complainant, therefore, they had no right to come over their land and attack the accused party. It was further urged that since the the complainant party had also caused them injuries, therefore, the accused were well within their rights to avert the attack. Having heard the rival contentions and having examined the records of the case, though as per accused party, they had also suffered injuries, yet, they did not go to the police station to lodge the FIR. The action was initiated at the instance of Om Parkash injured. The occurrence had taken place at 6.30 a.m. when Krishan Kumar had started digging foundation over the disputed place. There was dispute between the parties over the said piece of land since earlier also. The matter had gone to the panchayat. The inference could be drawn from the evidence that panchayat had stopped the accused party not to raise any foundation or make any construction over the disputed area. Since the accused persons had again started digging foundation over the common passage, it is implicit that the complainant party was well within their rights to stop the accused not to raise any wall over the said portion of the passage. The accused were the first who attacked the complainant party. Since the matter stood settled with the intervention of the panchayat, therefore, it did not behove to the Criminal Revision No. 2158 of 2005 -4- *** accused to initiate the dispute again. Thus, it appears that the accused having not assented to the settlement made by the Panchayat, they started raising foundation again. As such, in the given circumstances of the case it would be difficult to hold that the complainant party was the aggressor. All the injuries on the person of the accused are simple in nature, whereas, the injuries on the person of the complainant party are more and the injury No.1 on the person of Kanhaiya was found to be grievous in nature. Dr. Ramotar Gupta (PW1) who had medico-legally examined the injured and proved the MLR Ex.PW1/A observed as under :- “An incised wound of 4.5 cms x ½ cm x bone deep was present on the face at left maxillary area below left eye. Margins were regular with fresh bleeding. X-ray was advised.” Dr. H. R. Yadav (PW4) has proved the x-ray report Ex.PW4/A while stating that fracture of maxillary bone was found on the face of Kanhaiya. While taking the case from another angle, though, the complainant did not take any such plea that the accused party was the aggressor during trial, yet, in the absence of any such plea; they could set up such plea and could show the circumstances in order to establish that the accused party was the aggressor or that the court itself also could decide as to who was the aggressor, but in the present case the accused themselves have set up the plea that it was the case of sudden quarrel wherein both the parties caused injuries to each other. Binu (DW1) and Bhup Singh (DW2), have stated that when the labour of Krishan Kumar was raising foundation, then the accused and the injured entered into the quarrel with each other. Kanhaiya and women folk also came there and they went upstairs and started pelting stones. Kanhaiya Lal fell on the stones and suffered injuries. Thus, in view of the specific plea set up by the accused that it was the case of sudden fight, it would not be appropriate for the court to construct a different story than what was set up by the accused. Had the accused not taken such plea, then even in the absence of such plea, the court could see as to who was the aggressor. Criminal Revision No. 2158 of 2005 -5- *** Any way, even from the evidence as led by the parties, it is apparent that the occurrence took place as a result of sudden fight and the parties were responsible for injuries caused by them individually. It has come in evidence that the accused Sant Kumar had caused grievous injury on the person of Kanhaiya. With regard to the submission made by the petitioner that much time has elapsed since the occurrence took place, therefore, it was a fit case where some reduction in the sentence could be made. Keeping in view the fact that the accused caused simple as well as grievous injuries to the complainant party, they also did not spare the Omkala a lady, therefore, no grounds to reduce the sentence, are made out. Resultantly, this revision petition being devoid of any merit is dismissed. December 16, 2010 (A.N. Jindal) deepak Judge