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Tara Ram Chand and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1971CriLJ1201
AppellantTara Ram Chand and ors.
RespondentState
Cases ReferredM. Azizuddin v. Emperor A.I.R.
Excerpt:
.....with the authorities cited above. i am clearly of the opinion that this contention of the learned counsel for the appellants is without any force, and the secondary evidence adduced by way of the copies of the notices issued to kartar singh appellant in the form of exhibits p. is invalid, then the municipal squad consisting of the municipal employees had no authority to enter into the house of kartar singh appellant and in that case, kartar singh appellant and the other appellants who lived in that house had a right of private defence of property as well as that of person as the entry of the municipal squad into their 'house was illegal and without any authority of law. 20. after examining the respective contentions of the learned counsel for the parties and after going through..........he gave them the benefit of doubt and acquitted them. i have heard mr. m. r. mahajan, the learned counsel for the appellants and mr. n. s. bhatia, the learned counsel for the state of punjab, at considerable length. the learned counsel for the appellants contended that there being no evidence on the record of this case about the loss of the municipal file, therefore, it was not open to the learned additional sessions judge to have allowed the secondary evidence to be produced. therefore, he contended that the copies of the notices exhibits p. r., p. s., p. t. and p. u. are not admissible in evidence and should not be read in evidence. he contended that if the same are ruled out, there is no evidence led by the prosecution which could show that the municipal squad had gone to.....
Judgment:

Bhopinder Singh Dhillon, J.

1. This is an appeal against the judgment of ,the learned Additional Sessions Judge, Gurdaspur. dated 9-7-1969. Two sets of persons comprising of 7 accused in each set were tried Under Sections 148, 333/149, 332/149, and 353/149 of the Indian Penal Code. The first set is comprised of Kartar Singh, Buta Singh, Gurbachan Kaur and Kartar Kaur appellants along with Guddo daughter of Kartar Singh appellant, Mohindro daughter of Buta Singh and Joginder Singh son of Kartar Singh. The last three accused persons have been acquitted by the learned Additional Sessions Judge. The second set of accused persons consists of Ujagar Singh, Bahadur Singh, Tara Ram Chand and Bachan appellants along with Sukhdev Singh, and Sain Dass, who have been acquitted by the learned Additional Sessions Judge of all the charges.

2. The first information report in this case was lodged by Shri Prem Sagar, Executive Officer, Municipal Committee, Batala (P.W. 2) at 2 p, m. on 26-6-1967. within Police Station, City Batala, The prosecution case is that Kartar Singh appellant made unauthorised construction encroaching upon the municipal street. He was served with the notices Under Sections 195, 195-A. 172 and 220 of the Punjab Municipal Act with the direction to remove the encroachment and dismantle the unauthorised construction. He failed to remove the said encroachment within the time specified in the notices. As a consequence of this, the Executive Officer issued orders for removing the encroachment through the Municipal Agency. In pursuance of the said orders, Shri Mohinder Kumar, Municipal Engineer along with the municipal squad consisting of a large number of municipal employees, went to Mohalla Murgi Khana, Batala at about 12.15 p.m. on 26-6-1967 with the object of demolishing the unauthorised encroachment. When the squad started removing the encroachment, the inmates of the house of Kartar Singh appellant including women, started throwing brick bats on the members of the municipal squad. Gurbachan Kaur appellant threw brick bats which struck Kundan Lai, peon, and hit him on his forehead, just above the nose. Another brick was thrown by Kartar Singh at Amar Singh, Mate, which caused injury on his person. Joginder Singh accused was also throwing brick bats from inside the compound. Kartar Kaur appellant was throwing brick bats from inside the compound. Similarly all the other accused persons of the first batch started giving injuries to the members of the Municipal Squad.

It was then that the accused mentioned in the second batch who were armed with lathies and other weapons along with some other persons came at the site and started giving injuries to the members of the Municipal Squad. The , Executive Officer of the Municipal Committee is alleged to have witnessed the occurrence. It is alleged that the appellants and the other accused persons named in the second batch shouted that they would finish all the members of the Municipal Squad and teach them a lesson once for all. The first information report duly written was given to the Station House Officer who endorsed the same for the registration of the case and himself proceeded to the spot.

3. Dr. Ascharaj Lai (P.W. 1), who was examined as P.W. 9 before the Committing Court, examined Manga 1 Sain P. W, on 26-6-1967 at 410 p. m. and found 13 injuries on his person. Injury No. 12 was grievous and all the other injuries were simple. Injury No. 12 is as follows:

Injury No. 12. Diffused contusion 4 x 3' over the left ankle and leg outer part.

[After describing the nature of injuries received by some of the P. Ws. and some of the appellants their Lordships proceeded].

4-10. In addition to the medical evidence referred to above the prosecution examined Shri Prem Sagar, Executive Officer, Municipal Committee, Batala, (P.W. 2), Shri Mangal Sain, Tax Superintendent, Municipal Committee Batala. (P.W. 3), Shri Kansi Lai Secretary, Municipal Committee, Batala, (P.W. 4), Amar Singh (P.W. 5), Behari Lai (P.W. 6), Ram Lai (P.W. 7) Durga Dass (P.W. 8), Kans Raj (P.W. 9), Sampuran Kumar (P.W. 10) and Bal-want Rai Cheema (P.W. 16), who gave the ocular testimony of the incident. Dev Raj constable (P.W. 11) recorded the first information report Exhibit P. A./I on the endorsement of A. S. I. Nihal Singh. Sarwan Kumar (P.W. 12), who was working as a clerk in the Engineering branch of the Municipal Committee, Batala, since 1963, stated that the file regarding encroachment on the street made by Kartar Singh appellant was given to the police during the investigation of this case and a receipt Exhibit P. Q. was obtained from the police. He stated that the file should be on the Court record of this case, but it is missing from the record. A note had been recorded by the learned Additional Sessions Judge which reads as under:

This file is not present in the court record. A search has been made but it is untraceable. Therefore, secondary evidence of the contents of the file is allowed.

11. After the secondary evidence was allowed, copies of the notices served on Kartar Singh appellant were proved as Exhibits P. R., P. S.. P. T. and P. U. This witness stated that these notices were signed by Shri Malhotra, Municipal Engineer. He stated that the copies of the notices were prepared in his hand, and were attested by the Secretary, Shri Kansi Lai P.W. and kept in their record, when the file was given to the police. He identified the signatures of the secretary Kansi Ram.

* * * *

[After narrating the evidence of this, witness and of P.W. who had effected service of notices on appellants their Lordships proceededEd.].

12-13. The learned Additional Sessions Judge having found that the case against the appellants stood proved, convicted the appellants. As regards the other accused persons, who have been acquitted by him, he is of the opinion that there was no conclusive evidence to connect them with the crime, therefore, he gave them the benefit of doubt and acquitted them. I have heard Mr. M. R. Mahajan, the learned Counsel for the appellants and Mr. N. S. Bhatia, the learned Counsel for the State of Punjab, at considerable length. The learned Counsel for the appellants contended that there being no evidence on the record of this case about the loss of the Municipal file, therefore, it was not open to the learned Additional Sessions Judge to have allowed the secondary evidence to be produced. Therefore, he contended that the copies of the notices Exhibits P. R., P. S., P. T. and P. U. are not admissible in evidence and should not be read in evidence. He contended that if the same are ruled out, there is no evidence led by the prosecution which could show that the municipal squad had gone to perform the official duty in demolishing the wall of Kartar Singh appellant.

On the other hand, Mr. N, S. Bhatia, the learned Counsel for the State of Punjab, vehemently contended that no objection was raised about the admissibility of the secondary evidence at the stage of the trial by the counsel for the accused and it is not open for the learned Counsel for the appellants now to raise such objection at this stage. The learned State counsel has relied on Subbarao v. Venkata Rama Rao A.I.R. 1964 Andh Pra 53, wherein it was held that a question of proof of a document is a question of procedure and can be waived, if the objection to the secondary evidence is not taken when the same is being allowed to be recorded. The same objection cannot be allowed to be raised in appeal at the appellate stage. The non-raising of objection in fact amounts to a waiver of formal proof by the party against whom evidence is tendered.

14. Similarly, it was held in a case reported in Mt. Basanti v. Phole A.I.R. 1955 Him Pra 37, that an objection as to the admissibility of a document, e.g., on the score of the. document being a copy, should be taken when the witness who is produced to prove to its contents deposes about it. If such objection is not raised at an early stage of the case, it cannot be entertained later on in appeal. I am in perfect agreement with the authorities cited above. It is to be noted that when the evidence of Sarwan Kumar (P.W. 12), who proved the notices Exhibits P. R., P. S., P. T. and P U., was being recorded, no such objection was raised on behalf of the appellants. The question of proof is a question of procedure and can be waived. If the counsel for the appellants would have taken objection to the admissibility of the said evidence at the trial that was no proof on the file of the case that the original documents have been lost, it was open to the prosecution to produce some official of the Court or any other witness, who could have deposed regarding the missing file in question, and the objection could be met in this manner. I am clearly of the opinion that this contention of the learned Counsel for the appellants is without any force, and the secondary evidence adduced by way of the copies of the notices issued to Kartar Singh appellant in the form of Exhibits P. R., P. S. P. T. and P. U. cannot be ruled out from consideration.

15. The learned Counsel for the appellants next referred to the provisions of Section 65, Clauses (e) and (f) of the Indian Evidence Act and contended that according to Clause (e) and the proviso thereto, if the original is a public document within the meaning of Section 74, only a certified copy of the document is admissible as secondary evidence and no other copy is admissible. He contended that in view of the provisions of Sec- tion 74 of the Evidence Act, keeping in view Clause (ii) of Sub-section (1) thereof, the records of the acts of the official bodies and tribunals are public documents. His contention is that the file relating to the encroachment of appellants Kartar Singh maintained in the municipal office is a public document and according to the interpretation given by him to the provisions of Section 65, Clause (e) and proviso thereto, only certified copies of the notices could be produced as secondary evidence. He contended that the copies of the notices Exhibits P. R., P. S,, P. T. and P. U. nowhere contained the certificate by the competent authority that the same are the correct copies of the originals. Therefore, the same are not admissible in evidence.

16. Mr. N. S. Bhatia, the learned Counsel for the State of Punjab, on the other hand, contended that the interpretation sought, to be put forth by the learned Counsel for the appellants to the provisions of Section 65 of the Indian Evidence Act read with its proviso, is untenable and the said provisions cannot be interpreted in the manner as is being suggested by him. He relied on a case reported in Chikka Veerasetty v. Nanjundachari A.I.R. 1955 Mys 139. wherein it was held that the provisions of Section 65 of the Evidence Act postulate the admissibility of the uncertified copies of the public documents if the originals are destroyed. After considering the respective contentions of the learned Counsel for the parties, I am of the considered opinion that this objection of the learned Counsel for the appellants is without any merit. Clause of Section 65, which provides that in case of (e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible, seems to apply to a case in which a public document is still in existence on the public records and that provision appears to have been intended to protect the originals of public records from the danger to which they would be subject by constant production of such documents in Courts in evidence, and the said clause does not interfere with the general rule of evidence given in Clause (c), i.e., in cases where the original is destroyed or lost. Where the original documents have been destroyed and are not available, it is open to the parties concerned to produce uncertified copies in order to prove the contents of the original documents. If the provisions of Clause (e) and the other clauses providing for the production of the certified copies of the documents, Under Section 65 of the Evidence Act are read in the manner as is being sought to be interpreted by the learned Counsel for the appellants, the provisions of Clause (c) of Section 65 of the Evidence Act would become redundant in case where the public document has been destroyed and is not available. In my opinion, Clause (c) is quite independent of the provisions of Clauses (e) and (f) of Section 65 of the Evidence Act and would apply to all cases whether they are public documents oi otherwise if the originals are proved to have been lost or not available. Therefore, this objection of the learned Counsel for the appellants is overruled.

17. The learned Counsel for the appellants next contended that the notices Exhibits P. R., P. S., P. T. and P. U. are invalid as no evidence has been led by the prosecution to show that these notices could be issued by the Municipal Engineer and there was delegation of powers to him by the Executive Officer for issuing these notices. He contended that a notice Under Section 195 of the Punjab Municipal Act could only be issued by the Committee itself as this section is not mentioned in Schedule I of the Punjab Municipal Executive Officer Act, 1931, His contention is that in view of the provisions of Section 4 (b) of the Punjab Municipal Executive Officers Act, 1931, the Executive Officer can exercise the powers of the Committee regarding the sections which are mentioned in Schedule I of the Act. He contended that Section 195 of the Punjab Municipal Act is not included in Schedule I and, therefore, the Committee alone was competent to issue notices under this section. Therefore notice Exhibit P. S, was without jurisdiction That being so. he contended, that notice Exhibit P. U. issued Under Section 220 of the Punjab Municipal Act on behalf of the Executive Officer signed by the Municipal Engineer on 19-6-1967, is invalid. Because in that notice the non-compliance of the notice under Sec 195 was also made the basis for the issue of that notice. If the notice Exhibit P. ,U. is invalid, then the Municipal Squad consisting of the municipal employees had no authority to enter into the house of Kartar Singh appellant and in that case, Kartar Singh appellant and the other appellants who lived in that house had a right of private defence of property as well as that of person as the entry of the Municipal Squad into their 'house was illegal and without any authority of law.

18. Mr. N. S. Bhatia, the learned Counsel for the State of Punjab, on the other hand, contended that no objection having been raised at the earliest opportunity regarding the validity of the notices, therefore, it was not necessary for the prosecution to have adduced evidence to prove that the Municipal Engineer was duly authorised to issue such notices. The presumption of correctness has to be raised in favour of the prosecution and the notices shall have to be deemed to be valid. He contended that notices Exhibits P. R., P. S., P. T. and P. U. could be issued by the Executive Officer of the Municipal Committee and he also could authorise any other officer of the Committee to sign such notices on his behalf. No objection regarding the delegation of authority having been raised at the trial, the same cannot be permitted to be raised in appeal. He relied on an authority reported in Surain Singh v. The Crown (1940) 42 Pun LR 402 : A.I.R. 1941 Lah 90, wherein it was held that a notice Under Section 195-A of the Punjab Municipal Act, may be signed by anybody authorised by the Executive Officer. It was further held in this authority that if a person receives a notice Under Section 195-A of the Punjab Municipal Act, signed by somebody on behalf of the Executive Officer, the presumption is that it is signed by a person who has been authorised to sign it, and if the person refeivine that notice presumes otherwise and disobeys the notice, he is taking a risk. The burden lies on him to rebut the presumption of regularity.

19. The learned Counsel also relied on a case reported in M. Azizuddin v. Emperor A.I.R. 1943 Oudh 390. That was a case under the U. P. Municipalities Act and a notice Under Section 186 of the U. P. Municipalities Act read with Section 49 of the U. P. Town Improvement Act was issued and no objection was raised at the earliest opportunity regarding the validity of the notice, It was held that when the objection is not raised in the trial Court, want of proof of the authority to issue the notice will not render the prosecution defective or the conviction illegal.

20. After examining the respective contentions of the learned Counsel for the parties and after going through the provisions of the Punjab Municipal Act 1911 along with the Punjab Municipal Executive Officer Act, 1931 and perusing the authorities relied upon by the learned Counsel for the State, I am of the opinion that the contention of the learned Counsel for the appellants must fail. As regards the notice Under Section 195 of the Punjab Municipal Act is concerned, the said provision of the Act was amended by Act No. 2 of 1934 by which item No. 15 of the Schedule II of the Punjab Municipal Executive Officer Act. 1931 was amended and it was provided that Under Section 195 of the Punjab Municipal Act for the word 'Committee' wherever it occurs, except in the first proviso, the words 'Executive Officer' shall be deemed to be substituted. Thus -it would be seen that even a notice Under Section 195 of the Punjab Municipal Act can be issued by an Executive Officer. Sub-section (b) of Section 4 of the Punjab Municipal Executive Officer Act specifically provides that the powers conferred and duties imposed upon, the functions vested in, and the objections to be tendered and notice given to, the Committee under the sections of the Municipal Act mentioned in Schedule I, shall not be exercised or performed by, vested in, or be tendered or given to the Committee, but may be exercised or shall be performed by, or shall vest in, or shall be tendered or given to. the Executive Officer and then four provisos are added to this section. Schedule I of the Punjab Municipal Executive Officer Act mentions Sections 172. 195-A and 220 of the Punjab Municipal Act. From this provision it is abundantly clear that notices Under Sections 172, 195-A and 220 of the Punjab Municipal Act has to be issued by the Executive Officer and not by the Municipal Committee. Thus from what has been stated above, notices Under Sections 172, 195, 195-A and 220 of the Punjab Municipal Act can be validly issued by the Executive Officer and no fault can be found with the said notices.

21. The only question which is now to be examined is whether the notices Exhibits P. R., P. S., P. T. and P. U. issued by the Municipal Engineer in this case on behalf of the Executive Officer have been validly . issued. Provisions of Section 215 of the Punjab Municipal Act read with Section 4 (c). Schedule IT. Clause 17 of the Punjab Municipal Executive Officer Act, clearly provides that every notice issued under the Municipal Act or under any rule or bye-law, by an Executive Officer or by the person authorised by, him, shall be in writing signed by the Executive Officer or by any person authorised in this behalf. Thus it is clear that the Executive Officer is given power in view of the provisions mentioned above wherein he can delegate -his authority for issuing notices 'under the Punjab Municipal Act to any other person and the said person can sign the same on his behalf.

22. The other question which remains to be determined is whether the want, of proof of authorisation given by the Executive Officer to the Municipal Engineer in this case is fatal to the prosecution case. In this connection the two authorities relied upon by the learned Counsel for the State are on all fours. T am perfectly in agreement with the law laid down in these two authorities. As I have already said there is no want of jurisdiction apparent on the face of it. The Executive Officer can validly delegate his authority for issuing the notices to any other officer who can sign the notices on his behalf. If the appellants would have taken a stand in the trial Court that the notices referred to above are invalid for the reason that there was no proper authorisation by the Executive Officer to the Municipal Engineer, the prosecution could have shown by leading evidence that there was proper authorisation. That objection having not been taken at the trial, nor even a suggestion was made to the witness, who proved the notices, that the said notices were invalid, in this situation, I am of the opinion that this type of objection cannot be allowed to prevail at the appellate stage. Therefore, a presumption of regularity has to be drawn under the provisions of Section 114 of the Indian Evidence Act. Because if a person receives a notice purporting to be signed by somebody on behalf of the Executive Officer, the presumption is that it is signed by a person who has been authorised to sign it, and if the person receiving that notice presumes otherwise and disobeys the notice, he is taking a risk. The burden lies on him to rebut the presumption of regularity. In this case, the appellants have not led any evidence, to rebut the presumption of regularity attached to the notices Exhibits P. R., P. S, P. T. and P. U. which have been duly proved. The contention of the learned Counsel for the appellants that the Municipal Engineer was not produced by the prosecution is of no consequence. All these notices have been validly proved in accordance with' law. From the record of the ''case I find that the whereabouts of the Municipal Engineer were not known to the prosecution as he had left the service of the Municipal Committee, Batala. Therefore, it was not possible for the prosecution to have produced him as a prosecution witness. But, as I have already said, the notices are duly proved, and no fault can be found with these notices.

23. As regards the merits of the case, the learned Counsel for the appellants, could not point out anything substantial which could show that the appellants have been falsely involved in the case. The criticism of the learned Counsel for the appellants that Shri Prem Sagar (P.W. 2), Executive Officer, was in fact not an eye-witness of the occurrence, is of not much force. This witness immediately, when even the occurrence was taking place, contacted the police and reported the whole matter in writing, which writing gave the complete version of the incident. The criticism against him that he wrote the first information report while sitting in his office as he has quoted certain provisions of law in the first information report, and at the trial he stated that he did not write the same in his office, is of no consequence. It cannot be presumed that this officer had no knowledge of the legal provisions which he has referred to in the first information report without referring to the books. Moreover, we have the ocular testimony of a number of witnesses who were the members of the Municipal Squad and who were injured during the incident, Mangal Sain (P.W. 3) had received as many as 13 injuries and injury No. 12 was grievous. Kansi Lai (P.W. 4) had sustained as many as 6 injuries. Amar Singh (P.W. 5) and Behari Lai (P.W. 6) had three injuries each. Durga Dass (P.W. 8) and Kudan Lai (P.W. 13) had two injuries each, Kans Raj (P.W. 9) had one injury. All these P. Ws. are stamped witnesses and their presence at the spot cannot be denied. Assistant Sub-Inspector Nihal Singh also reached the spot immediately after the occurrence and he arrested Kartar Singh, Buta Singh, Gurbachan Kaur and Kartar Kaur appellants in the hospital. I have no reason to disbelieve the testimony of these eye-witnesses who have given an ocular account of the incident.

24. The only question which now remains to be examined is as to whether the appellants were correctly identified and whether the P. Ws. could identify them at the time of the occurrence. In this connection the evidence of Shri Prem Sagar, Executive Officer (P.W. 2) may be referred to. According to his evidence, he knew Kartar Singh, Buta Singh and Bachan appellants. He came to know the names of the remaining accused persons at the spot from the Municipal Engineer. Mohinder Kumar, Sarwan Kumar, Clerk and Dewan Chand, Assistant Accountant, who used to reside in the same Mohalla in those days. This witness having taken the names of all the accused persons at the spot from these persons, wrote the names of all the accused persons in the first information report itself. Sarwan Kumar (P.W. 12) in his examination-in-chief mentioned the names of all the accused persons including Ujagar Singh appellant and deposed regarding the part played by each of them. He being a resident of the same Mohalla knew all the appellants and could identify each of them. He further stated that his house was situated nearby the place of occurrence and when / he saw the accused coming armed with Dangs, he and about 10 other members of the Municipal Squad went inside his house for shelter and safety. No question was put to this witness if he ever told the names of the appellants to the Executive Officer. This witness was living close-by and, therefore, he was naturally knowing the names of the assailants. Similarly Kundan Lai (P.W. 13) also mentioned the names of Gurbachan Kaur. Kartar Kaur, Mohindero, Guddo, Joginder Singh, Kartar Singh and Buta Singh appellants in his statement and described the injuries caused by each of them. Kansi Lai, Secretary, Municipal Committee, Batala (P.W. 4) specifically mentioned the names of Rama and Tara appellants who chased him. Bahadur and Sukha appellants came from his front side by a short cut and they surrounded him. Rama and Tara-gave him Dang blows on his head, Bahadur and Sukha gave him Dang blows on his arms, palm and back. He knew Bahadur appellant before hand, However, he stated that he did not know Sukha accused earlier. He made enquiries about the name of Sukha and came to know his name. From what has been stated above, there is ample evidence led by the prosecution which conclusively shows that there cannot be any case of mistaken identity and all the appellants were correctly identified to be the assailants who took part in the assault.

25. The contention of the learned Counsel for the appellants that Sarwan Kumar (P.W. 12) and some other prosecution witnesses stated that Buta Singh had fell down due to these injuries and in that situation, Buta Singh and his other associates had a right of private defence of person, is of no consequence. The Municipal Squad was duly armed with legal authority to demolish the unauthorised construction. It were the appellants who interfered in the due discharge of their duties and started causing injuries to them. If by way of retaliation some brick-bats were thrown by the members of the Municipal Squad in order to save themselves from the assault, that would not give any right to the appellants to further cause injuries to the members of the Municipal Squad and to make further resistance to the members of the Squad in the discharge of their official duties. I am satisfied that the conviction of the appellants has been rightly recorded.

26. However, keeping in view the circumstances of the case, I am of the opinion that the ends of justice will be met if Tara. Ram Chand, Bahadur Singh Uiagar Sinsgh and Bachan appellants are awarded sentence of two years rigorous imprisonment each Under Sections 333/149 of the Indian Penal Code, and sentence of one year's rigorous imprisonment Under Sections 332/149 of the Indian Penal Code. However, their sentences Under Section 148 of the Indian Penal Code is maintained. I further reduce the sentence of Kartar Singh and Buta Singh Under Sections 332/149 of the Indian Penal Code from two years rigorous imprisonment to that of 'one year, but maintain their sentences Under Section 148 of the Indian Penal Code for one year's rigorous imprisonment each. All these sentences shall run concurrently. The sentence of fine imposed on Kartar Kaur and Gurbachan Kaur is maintained Under Sections 332/149, and 148 of the Indian Penal Code. Except to the extent indicated above, this appeal is dismissed.


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