Madhya Pradesh High Court
Harbhajan And Ors. vs State Of Madhya Pradesh on 30 August, 1988
Equivalent citations: 1989CRILJ2205
JUDGMENT R.C. Lahoti, J.
1. All the 3 accused/ appellants stand convicted by the trial Court under Sections 323/34, 324/34, 326/34 and 333/34. I.P.C. Each of them has been sentenced to six months' R.I. Under Section 323/34, I.P.C., to one year's R.I. under Section 324/34; to three years' R.I. with a fine of Rs. 500A each (and three months' imprisonment in default) Under Section 326/34, I.P.C., and three years' R.I. with a fine of Rs. 500/- each (three months' imprisonment in default of payment of fine Under Section 333/34, I.P.C. An amount of Rs. 1500/- has been directed to be paid by way of compensation to the injured Tejsingh, in the event of fine being realised. The sentences have been directed to run concurrently.
2. The prosecution case is that Tejsingh (P.W. 4) was posted as Manager of Government Agriculture Farm at village Gajora of Tehsil Pichhore. There is a canal, passing through the Government Farm, which irrigates the Government Farm. On the southern side the fields of the accused/ persons are situated. On 17-3-1984, at about 3 a.m. a labourer Kashiram informed Tejsingh, the Farm Manager, that accused persons have cut a by-pass in the canal and thereby they are taking water to their fields. A little later Tejsingh set out on an inspection round. He reached at plot No. 36 of the Government Farm. He found that accused Malkhan was taking water by cutting a by-pass from the channel running over plot No. 38. He asked the accused Malkhan not to do so. Just at that time, the other two accused Hardayal and Harbhajan also arrived there. Accused Harbhajan had a gun with him while accused Malkhan and Hardayal had spades in their hands. Accused Harbhajan exhorted the other two accused to beat Tejsingh. Accused Harbhajan himself dealt a blow by the buttend of the gun which caused an injury over the head and also on the left hand of Tejsingh. Accused Hardayal and Malkhan both caused injuries by spades over the head of Tejsingh. Tejsingh ran away for his life, but the accused Malkhan threw a stone causing an injury over the hips of Tejsingh.
3. Ramlakhan, Mate of the Farm, reached at the place of the incident and took away Tejasingh. Tejasingh called for a tractor of the Farm and reached the Police Station Pichhore, where he lodged the F.I.R. (Ex. p/5) of the incident with Jandelsingh Kushwaha (P.W. 8) the Station Incharge. Tejasingh was referred for medical examination at Civil Hospital Pichhore. He was examined by Dr. Hari Prakash Jain (P.W. 2), at 7.30 a.m. on 17-3-84. The following injuries were found on the person of Tejasingh:
(1) an abrasion 1" x 1" over the left forearm 3" proximate to the left wrist joint;
(2) a contusion 3" x 1" over the left shoulder joint;
(3) a contusion 2" x 2" over the back of right forearm;
(4) an abrasion 1" x 1" over the bridge of the nose;
(5) a lacerated wound 2.5" x 1/2" x 1/4' over the top of the scop;
(6) a lacerated wound 1" x 1/4" x 1/4" over the left parietal region of the scalp;
(7) a lacerated wound 2" x 1/2" x 1/2" over the right parietal region of the scalp;
(8) an incised wound 3" x 1/2" x 1/2" over the left parietal region of the scalp;
(9) an incised wound 3" x 1" x 1/2" over the right side of the forehead.
All the injuries were simple, except the injuries on head for which X-ray was advised. The incised wounds were opined to have been caused by a sharp weapon and other injuries by a hard and blunt object. On X-ray, it was found that there was a fracture of right frontal bone.
4. The accused/appellants were arrested on 19-3-84. A gun and two spades were recovered from them on 20-3-84. After usual investigation, a challan was filed.
5. At the trial, all the three accused/appellants were charged Under Section 430/34, I.P.C. for having caused mischief by cutting the water canal and thereby causing loss of water to the Government Farms; Under Section 333/34, I.P.C. for having caused grievous injuries with deadly weapons to Tejasingh knowing that he was a public servant and with intention of deterring him from performing his public duties, and Under Section 307/34, I.P.C. for attempting to cause death of Tejasingh. However, the trial Court held that the accused/appellants have been taking water from the canal from much before and no loss was occasioned to the Government Agriculture Farm hence an offence Under Section 430/34, I.P.C. was not made out. Looking to the nature of the injuries and the attending circumstances to the incident, the trial Court held that an offence Under Section 307/34, I.P.C. was also not made out. The accused were acquitted of the offence Under Sections 430/34 and 307/34, I.P.C., but convicted, as already stated hereinabove.
6. Here itself it would be useful to notice a prominent feature of the case on which two limbs of attack on the legality of conviction rest. The accused/appellants did not totally deny the happening of an incident at the relevant time, place and day, but their version is different. When the accused/appellants were called upon to enter upon defence they called Dr. Hari Prakash Jain (P.W. 2) and Jandel Singh Kushwaha (P.W. 8) once again, but, as witnesses for defence. The trial Court re-examined the two as D.W. 1 and D.W. 2 respectively. From the statements of these witnesses it was brought on record that on 17-3-84 at 8.30 a.m. i.e. within an hour and a half of lodging of the report by Tejasingh (P.W. 1), accused Malkhan accompanied by accused Harbhajan and Hardayal had lodged a F.I.R. at P. S. Pichhore, marked Ex. D/4. Therein the allegation is that while Malkhan was watering his field from the channel in his own right, Tejasingh, Farm Manager, asked him not to do so and dealt with blows by a stick which was with him. Malkhan ran away, but Tejasingh followed him and after running for some distance, Malkhan stopped where Harbhajan and Hardayal also arrived. At the same time about 20 employees of the farm came there, some of them were armed with iron rods, sticks and a farsi. The three accused were beaten by the farm employees.
7. The three accused were also referred for medical examination. Dr. Hari Prakash Jain examined them and found the following injuries on the persons of the three accused/appellants:
(1) Accused Malkhan- vide Ex. D/1:
(1) a contusion 2" x 1" over left temporal region of the forehead;
(ii) a contusion 2" x 2" over right side of the back;
(iii) a contusion 1/2" x 1/2" over the left thumb;
(2) Accused Hardayal- vide Ex. D/2:
(i) a lacerated wound 1" x 2" x 1/4" over the forehead;
(ii) a contusion 2" x 2" over the right elbow joint;
(3) Accused Harbhajan- vide Ex. D/3:
(i) a contusion 2" x 1" over the right forearm;
(ii) a lacerated wound 1" x 1/2" x 1/4" over the right parietal region of the scalp;
(iii) a lacerated wound l'/2" x 1/2" x 1/2" over the left parietal region of the scalp.
According to Dr. Hari Prakash Jain, all the injuries on the persons of the accused/appellants were caused by hard and blunt object. While describing the injuries of accused Harbhajan, at one place there is overwriting in the injury memo. It was suggested on behalf of the defence that initially the nature of the injury was written as "incised wound", but the word "incised" was scored out and corrected as 'lacerated'. The suggestion was denied by Dr. Jain though he admitted that there was an overwriting. Jandelsingh, Station Incharge, stated that congnizance was not taken on Malkhan's report, Ex. D/4, because the allegations did not make out a cognizable offence and the medical report also did not go beyond suggesting simple injuries.
8. Shri Arun Pateria, learned Counsel for the appellants, has contended that the trial Court committed a serious illegality in recording the statements of Dr. Hari Prakash Jain and Jandelsingh twice. He submits that this has occasioned prejudice to the accused/appellants because the two witnesses have been termed as 'defence witnesses' while they were prosecution witnesses initially and essentially and would remain so throughout the trial. It is true that the trial Court did commit an error in recording the statements of these witnesses at two places and by statistically numbering them initially as P. Ws. and then as D.Ws. The substantive law of evidence or the procedural criminal law do not permit the statement of one witness being recorded twice so as to read the two as separate depositions. After all the same witness cannot be a witness for prosecution and a little later a witness for defence. That is why Rule 188 of the Rules and Orders for guidance of Criminal Courts, framed by the High Court provides as under:
It is important that the whole of the evidence given by each witness should appear in one place, and should not be scattered at intervals through the record. Therefore when a witness is for any reason recalled and further examined after the close of his original deposition such further examination should appear as a continuation of the original deposition, etc. etc. U/s. 233, Cr. P.C., 1973 when called upon to enter on his defence, the accused is entitled to apply for issue of process compelling attendance of witnesses and the Court is bound to issue such process unless for reasons to be recorded the Court may find the application to be vexatious or designed to delay or defeat the ends of justice. The trial Court rightly permitted the recall of the two witnesses because it was necessary to do so in the ends of justice. The only error in which it fell, wittingly or unwittingly, was to have recorded the statements at two places. It should have inserted a note on the earlier depositions of these witnesses and resumed examination, cross-examination etc. in continuation of the original depositions.
9. However, the question still remains, what is the effect of this error? There is no illegality. At worst, it may be called an irregularity. If the two depositions would have been recorded at one place, they would have been read together. They can still be read together, though tagged in the record at two different places. A reference to several observations of the Apex Court in William Slaney v. State of M.P. shows that a procedural mistake is always curable unless and until the Court is satisfied that there was prejudice. Section 465 of Cr.P.C, specifically covers such a situation, statutorily enacting that such errors or irregularities do not have the effect of reversing a competent Court's finding or sentence and the Court while determining whether it has occasioned a failure of justice, shall have regard to the fact whether an objection could or should have been raised at an earlier stage in the proceedings. In the present case, not only an objection has not been raised, but partially the accused himself has contributed to the irregularity. No prejudice can be spelled out from the record and the objection must fail. So must fail the claim for retrial.
10. On merits, it is writ large on the record of the case that one incident has given rise to two conflicting versions, each party levying fault on the other. Tej Singh (P. W. 4) promptly reported the matter to the police, but the degree of promptness was not lesser on the part of the accused persons, Tejasingh had a tractor available enabling him to reach the Police Station at 7 a.m. The accused travelled the distance of about 6 Kms. on their feet with injuries on their person and reached the Police Station at 8.30 a.m. It is significant that they were not arrested immediately thought there was a specific allegation of commission of cognizable offence by them. It appears that the Station Officer was in doubt till then as to which of the two was true. Later, he changed his mind and arrested the accused persons out without investigating into their version of the incident. The explanation furnished by the Investigating Officer is totally false and cannot be accepted at its face value. The F.I.R., Ex. D/4, positively alleged that the assailants were 20; that they all came together; and, that they were armed with iron rods and farsa as well, with which injuries were caused to the accused. The report disclosed commission of offences punishable Under Sections 324 and 148, I.P.C., both cognizable. There is no reason why cognizance should not have been taken on this report, Even if the report disclosed commission of a non-cognizable offence, still it was expected of the Investigating Officer, if he was fair, to have investigated into the truthfulness of this report, Ex. D/4, while investigating into the offences registered on complaint made by Tejasingh (D.W. 4) because the two versions essentially related to the same incident. This was all the more necessary when the injury reports confirmed prima facie the version of the accused persons demonstrating that it was not a report made merely for the sake of making or for planting a defence. It follows that the investigation has taken one sided view of the things from the very beginning in all probability because there was a public servant involved in the incident. Tejasingh (P.W. 4) was specifically asked about the injuries sustained by the accused persons, but he did not explain. Ramlakhan (P.W. 5), the only other witness to the incident, whose statement was recorded as an eye-witness to the incident during investigation, refused to be an eye-witness before the Court. He was declared hostile and cross-examined. There is no other evidence explaining the injuries of the accused persons which certainly were not of minor nature nor self-inflicted.
11. In Lakshmi Singh v. State of Bihar their Lordships of the Supreme Court summed up the law as to non-explanation of injuries to the accused as under (Para 11):
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from the Court can draw the following inference:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
In Seriyal Udayar v. State of Tamil Nadu their Lordships observed "Though the right of private defence of the accused appellant was not established still the material produced in cross-examination and circumstances indicated that the incident might have happened in a manner in which it was suggested by the accused appellant, it cannot be said that the prosecution had established the offence against the accused beyond reasonable doubt." In Patori Devi v. Amar Nath their Lordships sustained an order of acquittal as proper where the prosecution witnesses were found to have suppressed their own part, exaggerated the part played By the accused; suppressed the fact of causing injuries to the accused and there was a soft pedaling in the investigation. The principles emerging from the abovesaid authorities fully apply to the facts of the present case. A single Bench decision of this Court in Mansingh v. State of M.P. 1987 MP LJ 511 : 1987 Cri LJ 693 relied on by the learned Counsel for the State is clearly distinguishable because in that case there was one simple lacerated wound upon the person of one accused as against multiple injuries suffered by the prosecution witnesses caused by lethal weapons like Farsa, sword and the country made pistols etc. It was also found on the material available that the accused were the aggressors and the injuries to the accused were simple and inconsequential,
12. The result is that the conviction of the accused/appellants cannot be sustained. The appeal is allowed. Their conviction as recorded by the trial Court and sentences passed are set aside. They are acquitted. They are on bail and need not surrender to their bail bonds which shall stand discharged. The amount of fine, if realised, shall be refunded to the accused/appellants.