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Himachal Pradesh High Court · body

2005 DIGILAW 68 (HP)

NEK RAM ALIAS NIKKA v. STATE OF HIMACHAL PRADESH

2005-03-24

M.R.VERMA

body2005
JUDGEMENT Mr. M.R. Verma, Judge.: This appeal has been preferred by the appellant-convict-accused (hereafter referred to as the accused1) against the judgment dated 21.9.2004 passed by the learned Sessions Judge, Kullu whereby the accused has been convicted under Section 328 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for four years and fine of Rs.5,000/-and in default of payment of fine to undergo further imprisonment for six months. 2. Case of the prosecution briefly stated is that complainant Gullu Devi (PW-3), a widow and issueless women, resides alone in her house in village Barman Behar. On 2.11.2003 at 8. p.m. the accused came to her house and stated that his relations also resides in the vicinity of PW-3. He was informed by PW-3 that she had pain in her knees and the accused revealed that he was also a victim of the same disease and that he was having some medicine for treatment of the disease and offered 7-8 green coloured pills to PW-3 and advised her to take all the pills with water. After taking the pills, PW-3 became unconscious and had to be removed to the hospital at Kullu where she regained consciousness on the next day. It was then found that the golden ornaments, i.e. one pair of ear-rings of 20 Kundus (small earrings) of gold; which she was wearing, were missing. She was discharged from the hospital on 7.11.2003. In the meanwhile, Purkhu (PW-1) had already made a complaint ExtPW-1/A to the police. On 8.11.2003 when Sub Inspector Tameshwar (PW-8) was present in the village for the purpose of enquiring into the complaint, Ext.PW-1/A, he recorded the statement of PW-3 Ext.P-3/A on the basis of which formal FIR Ext.PW-9/A was recorded. As per the contents of Ext.PW-3/A, it was also alleged that a sum of Rs. 7,000/- two nose-pins of gold, pyle, Ghumni and Chooris were also found missing from the house of PW-3 and that she could identify the person who had come to her house, as aforesaid. During investigation, wearing apparels i.e. Salwar and a shirt of PW-3 were taken in possession vide Memo. Ext.PW-1/B. The copies of the record relating to her treatment in the hospital and MLC Ext.PW-5/B regarding her medical examination were also taken in possession. During investigation, wearing apparels i.e. Salwar and a shirt of PW-3 were taken in possession vide Memo. Ext.PW-1/B. The copies of the record relating to her treatment in the hospital and MLC Ext.PW-5/B regarding her medical examination were also taken in possession. The wearing apparels of PW-3 taken in possession, her Pyjami and slides of her vaginal smear taken at the time of her medical examination were sent for chemical analysis and vide report Ext. PA from the Forensic Science Laboratory nothing incriminating was found on Salwar, shirt and Pyjami. However, some blood traces incapable of further tests were found in the vaginal smear. It was also found during investigation that the accused had been coming to the village and staying in the house of Pradeep Kumar and that said Pradeep Kumar was also a privy to the commission of the offences. On completion of investigation, charge sheet was submitted against the accused and said Pradeep Kumar and they came to be tried , by the learned Session Judge, Kullu on a charge under Section 120-B, 328 and 380 of the Indian Penal Code against said accused and a charge under Section 120-B and 212 of the Indian Penal Code against the Pradeep. To prove the charges against them, prosecution examined 11 witnesses. Statements of the accused and said Pradeep Kumar were recorded under Section 313 Cr.P.C. wherein they denied the case of the prosecution as a whole and claimed to be innocent. They, however, did not lead any defence evidence. 3. On appreciation of the evidence on record, the trial Court held the accused guilty of the commission of an offence under Section 328, I PC and also held that the remaining heads of charge against the accused and all the charges against Pradeep Kumar were not proved. Therefore, Pradeep Kumar was acquitted and the accused was also acquitted of the heads of charge Sections 120-B and 380, . IPC. The accused was however, convicted and sentenced under Section 328, IPC as aforesaid. Hence, this appeal by the accused. 4. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 5. IPC. The accused was however, convicted and sentenced under Section 328, IPC as aforesaid. Hence, this appeal by the accused. 4. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 5. It may be pointed out at the very outset that the acquittal of Pradeep Kumar of the charge against him and acquittal of the accused of the heads of charge under Section 120-B and 380 of the Indian Penal Code, has not been called in question and challenged by the State as per the law, therefore, the judgment rendered by the trial Court to this extent has become final. 6. The impugned conviction and sentence has been assailed by the learned counsel for the accused on the ground that there is no cogent and reliable evidence on record to prove that the accused administered any poisonous, stupefying, intoxicating or unwholesome drug or other thing to PW-3. It was also contented that the identity of the accused is not established and further in view of the acquittal of the accused for the commission of an offence of theft it can also not be said that the alleged giving of poisonous, stupefying or intoxicating drug by the accused to PW-3 was with the intention to facilitate the commission of any offence, therefore, the impugned conviction and sentence cannot be sustained. 7. On the other hand, the learned Deputy Advocate General has contended that in view of the statements of Bhyansru Devi (PW-6) and Rita Devi (PW-7) it is fully and firmly established that at the material time the accused was present in the village and in view of the statement of Gulfu Devi (PW-3), who has no motive what-so-ever to falsely implicate the accused in the commission of the offence, it is established that in fact it was the accused who administered 7/8 green pills to PW-3 whereby she became unconscious. Therefore, the impugned conviction and sentence has rightly been awarded to the accused and calls for no interference. 8. Therefore, the impugned conviction and sentence has rightly been awarded to the accused and calls for no interference. 8. PW-6 has stated that in the 11th month of the year prior to the year she was examined in the Court, i.e the relevant month, she met Gulfu Devi on the way while she was returning home and Gulfu Devi was going to Bajora and while they were talking, the accused came there and informed that he wanted to visit the house of PW-3. On inquiries by her, the accused informed that he had been sent by a person to the house of PW-3 and he also called PW-3 as Dadi". The accused inquired from PW-3 about the time she would be back to her house and was told that sh3 would be back by 8 OClock. On further inquires, the accused informed that he would go to the house of Pradeep who is his relative. It is further evidence of PW-6 that on the next day of the occurrence, PW-3 was admitted in the hospital. The witness has identified the accused as the person who had met them as aforesaid. In the cross-examination she has stated that she had seen the accused about 3 months earlier also. She has denied the suggestion that the accused never met her nor he went to the house of Gulfu Devi. She has further stated in her cross-examination that she did not see the accused entering the house of PW-3 on the day he had met them on the way but she saw him going to the house of Pradeep. Thus, it is evident from her statement that she knew the accused whom she had seen even on an earlier occasion and her identifying the accused with whom she had even talked on the day he met her and PW-3 on the way, cannot be doubted in any manner. 9. Rita Devi (PW-7) is the wife of Pradeep Kumar. She has specifically stated that the accused visited their house at Bamanbehar on 1.11.2003 and left on the next day. She has denied the suggestion that the accused had never visited her house. 9. Rita Devi (PW-7) is the wife of Pradeep Kumar. She has specifically stated that the accused visited their house at Bamanbehar on 1.11.2003 and left on the next day. She has denied the suggestion that the accused had never visited her house. Her statement and her having identified the accused as the person who visited their house on the 1st and left on the 2nd on November, 2003 is in no way shattered and finds support from the statement of PW-6 who has stated that she saw the accused going to the house of Pradeep, i.e. husband of PW-6, on the day when he had met her and PW-3 on the way. 10. Thus, the identity of the accused as the person who had met PW-3 and PW-6 on the way and wanted to go to the house of PW-3 and his having stayed in the house of Pradeep Kumar, cannot be doubted and, thus the accused is proved to be in the village of PW-3 at the relevant time. 11. PW-3 has stated that about 8 or 9 months before on the first date of the month (which works out to October/November, 2003) the accused was present in the house of Pradeep. On the second day he came to her house at about 6.00 p.m. and informed her that he was having some work with her as he had got some medicines for her knee pains and that he would visit her house again at 8.00 p.m. She has further stated that thereafter she went to Bajora to deliver milk in the Bazar and when she returned home, she found the accused sitting in her house in the Verandah. She identified the accused in the Court as the person who had met her and who was found sitting in her Verandah as aforesaid. She told him to go to his house but he insisted on providing medicines to her. When PW-3 entered the house, the accused followed her and gave her green colour pills and asked her to eat all the tablets with water. PW-3 did as advised and became unconscious. In the cross-examination she has denied the suggestion that the accused was identified by the Police at Bajora and only then she was identifying him and claimed that the accused had visited her house. PW-3 did as advised and became unconscious. In the cross-examination she has denied the suggestion that the accused was identified by the Police at Bajora and only then she was identifying him and claimed that the accused had visited her house. Further she has denied the suggestion with respect to the accused for not administering the tablets to her or that in connivance with the police she had made a false case against the accused. Since this witness had the occasion to speak to the accused for a considerable time on different occasions, therefore, her having identified the accused cannot be doubted, more so, when her statement on material particulars like the accused staying in the house of Pradeep on the previous night and thus in the vicinity of her house and his desire to go to the house of PW-3, is corroborated by other two witnesses as stated here-in-above. Her version that after taking the pills she became unconscious, is duly corroborated by medical evidence, i.e. her treatment records Exts.PW-4/A, PW-4/B and MLC Ext.PW-5/B read with the statement of Dr. Neeru Pandit (PW-4) which clearly establishes that she was taken to the hospital when she was unconscious. No enmity, ill-will or any other motive have been imputed by the defence to PW-3 or for that matter of PW-6, PW-7 and PW-4. Thus, there is no reason for them to make false statements implicating the accused as the person who administered the green pills to PW-3 whereby she became unconscious. 12. In view of the above evidence, it can be safely concluded that the accused visited the house of PW-3 and gave her green colour tablets and persuaded her to take them with water which rendered her unconscious. However, nothing beyond that can be said to have been proved on the record. Therefore, the question which arises for determination is whether the proved fact that the accused made PW-3 to take some green tablets whereby she became unconscious amounts to an offence under Section 328 of the Indian Penal Code under which the accused has been convicted. 13. Section 328 of the Indian Penal Code reads as under:- 328. Therefore, the question which arises for determination is whether the proved fact that the accused made PW-3 to take some green tablets whereby she became unconscious amounts to an offence under Section 328 of the Indian Penal Code under which the accused has been convicted. 13. Section 328 of the Indian Penal Code reads as under:- 328. Causing hurt by means of poison, etc, with intent to commit an offence- Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 14. It is clear on a bare reading of the aforesaid Section that the act of administering any stupefying, intoxicating or unwholesome drug or any other thing with the intention to cause hurt to a person or with the intention to commit or to facilitate the commission of an offence or knowing it to be likely that hurt would be thereby caused, will fall within the mischief of this Section. It follows that if the unwholesome drug or the stupefying or intoxicating substance is not administered with the intention of causing hurt or to facilitate the commission of or to commit an offence, the accused cannot be convicted under this Section. No doubt, the prosecution has failed to prove that the intention of the accused in administering the green tablets to PW-3 which rendered her unconscious, was to commit theft and he did commit theft. However, the accused will be still guilty of an offence under Section 328 of the Indian Penal Code if it is proved that the accused administered the green pills to PW-3 with intent to cause hurt or knowing it to be likely that hurt would thereby be caused to her. 15. Section 319 of the Indian Penal Code provides that who ever causes bodily pain, disease or infirmity to any person, is said to cause hurt. In the case in hand, the accused persuaded PW-3 to take the tablets which rendered her unconscious and, thus, she was put in unsound/unhealthy state of body. 15. Section 319 of the Indian Penal Code provides that who ever causes bodily pain, disease or infirmity to any person, is said to cause hurt. In the case in hand, the accused persuaded PW-3 to take the tablets which rendered her unconscious and, thus, she was put in unsound/unhealthy state of body. Infirmity is an inability of an organ to perform its normal function which may be either temporary or permanent. Therefore, by persuading PW-3 to take the pills which rendered her unconscious, the accused has caused temporary physical infirmity to PW-3. 16. It is not the case of the accused nor borne by the record that he had gone to the house of PW-3 as a benevolent person with the bona fide motive to render medical aid to ailing PW-3 and pursuant to such motive, made her to take the pills. Therefore, he must be presumed to have the knowledge that such a dose of tablets as he persuaded PW-3 to take, was likely to cause infirmity to PW-3. In view of this conclusion, the accused cannot escape conviction under Section 328 of the Indian Penal Code. Therefore, the impugned conviction does not call for interference by this Court 17. It was also submitted for the accused that the sentence awarded to him is on the higher side and in case he is found guilty of the offence under Section 328 of the Indian Penal Code, the sentence is liable to be reduced so as to make it proportionate to the offence proved to have been committed by him. 18. It is not in dispute that the accused is not a previous convict. The gravity of the offence proved to have been committed by him is minimized by the fact that the heads of charge under Section 120-B and 380 of the Indian Penal Code against him have not been proved and thus the offence proved to have been committed by him, has been rendered as grave as an offence under Section 324 of the Indian Penal Code. More-over, he is not shown to be a moneyed person but admittedly is a labourer who usually cuts grass for others and has a family consisting of his wife and two children to maintain. In these circumstances, the sentence awarded to him by the trial Court seems to be on the higher side and deserves to be reduced. More-over, he is not shown to be a moneyed person but admittedly is a labourer who usually cuts grass for others and has a family consisting of his wife and two children to maintain. In these circumstances, the sentence awarded to him by the trial Court seems to be on the higher side and deserves to be reduced. It may be noticed here that the accused was arrested on 13.11.2003 since then continues to be in custody. 19. For the reasons and conclusion here-in-above, while maintaining the conviction of the accused under Section 328 of the Indian Penal Code, the sentence awarded to him is reduced to the sentence of imprisonment for the period already undergone and fine of Rs.2,000/-. In default of payment of fine, the accused shall undergo imprisonment for two months. 20. The appeal is disposed of in terms of the above orders. 21. Since the accused is in jail, therefore, a copy of this judgment be sent to him through the concerned Jail Superintendent for his information. -