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Himachal Pradesh High Court · body

2010 DIGILAW 1114 (HP)

State of H. P. v. Suresh Kumar

2010-09-17

SURINDER SINGH

body2010
JUDGEMENTS Surinder Singh, J : The learned trial Court, in Criminal case No.30-II/03, acquitted the respondents for the offences punishable under Sections 325 and 323 read with Section 34 of the Indian Penal Code, hence this appeal by the State. 2. Respondent No.2 Saligram died during the pendency of this appeal, therefore, appeal against him abates and only survives against respondent Suresh Kumar. 3. Heard and gone through the record. 4. The respondents were tried for the aforesaid offences, on the allegations that on 11.5.03 at about 12.15 p.m., PW1 Rajneesh Kumar complainant was busy in irrigating his Litchi plants in the orchard. Earlier, both the parties used to pick up dispute over the use of water passing through a channel in the front of the house of respondents. On the day of alleged incident, while checking the water supply, the complainant was suddenly attacked by the respondent Suresh Kumar. He dealt a blow on his face with an iron rod and gave another blow on his left arm. By the first blow, his upper jaw incisor (Tooth) got dislodged it caused a bleeding injury. Suresh Kumar went inside his house and shut his door. Thereafter, his father deceased respondent came there and scuffled with the complainant, on this he raised hue and cry, by which PW4 Chaino Ram got attracted. He came to the spot and rescued him. 5. On the same day at 2.30 p.m., Rajneesh Kumar injured lodged the report Ex.PW1/A to the police. He was got medically examined from PW2 Dr.Mohan Chaudhary. Doctor noticed following injuries as mentioned in MLC Ex.PW2/A on the person of injured:- (i) Contusion on left arm (impression mark) 4.5 x 1.5 cm, reddish in colour. Anterior aspect oblique in directions. (ii) Lacerated would in left side sub mandibular region .9x4 cm of size. It was bleeding on cleaning and touching the wound. (iii) Lacerated wound at left angle of mouth through and through alongwith body of mandible of left upper three tooth. 6. Injury Nos. 1 and 2 were opined to be simple and for injury No.3 he was referred to the dental surgeon PW7 Dr. Raman Vaid. Injured produced broken tooth of the crown. On examination, Dr. Vaid found the root stump tendered on percussion. X-ray was taken. It was opined to be grievous in nature and could possibly be caused with an iron pipe. His opinion is Ex.PW7/A. 7. Raman Vaid. Injured produced broken tooth of the crown. On examination, Dr. Vaid found the root stump tendered on percussion. X-ray was taken. It was opined to be grievous in nature and could possibly be caused with an iron pipe. His opinion is Ex.PW7/A. 7. Thus, on the basis of the medical opinion aforesaid, the report Ex.PW1/A culminated into FIR Ex.PW5/B. 8. During investigation, police recovered iron pipe Ex.P1 and also prepared the site plan of the alleged place of incident (Ex.PW5/A). 9. After recording the statements of the witnesses and completing the challan, it was presented in the Court for the trial of the respondents, for the offences aforesaid. 10. The respondents were accordingly charge-sheeted. They pleaded not guilty and claimed trial. 11. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. 12. Their defence was denial simplicitor. But however, stated that they had laid the pipes for irrigating their lands. In cross-examination of the injured, it was suggested that he had sustained the injuries on account of a slip in the water channel but, no evidence in defence was led. 13. At the end of the trial, the respondents were acquitted on the grounds: (i) The complainant and his father (PW3) have a long standing dispute regarding the use of water, thus they had the motive to depose against the respondents and their testimonies are in sharp contradictions to each other; (ii) The alleged eye witness PW4 Chaino Ram stated that when he reached the spot, complainant was lying in the courtyard of the house of respondents, at that time respondent No.2 and his wife were standing in the front of the door of their house. PW4 aforesaid came to know from the brother of the complainant later on, about dislodging the tooth. (iii) The injuries on the complainant could not be proved to have been inflicted by the accused. (iv) Witness of recovery of iron pipe did not support the prosecution case. 14. PW4 aforesaid came to know from the brother of the complainant later on, about dislodging the tooth. (iii) The injuries on the complainant could not be proved to have been inflicted by the accused. (iv) Witness of recovery of iron pipe did not support the prosecution case. 14. In fact by now it is well settled that the following aspects ought to be born in mind while entertaining and determining merits of an appeal against the acquittal:- (i) When the findings recorded by the trial Court are wrong and perverse, this Court is entitled to or obliged to reverse the acquittal and convict the accused; (ii) Even otherwise the evidence of the hostile witnesses does not stand wholly disentitled; (iii ) Omissions and contradictions which are insignificant or at very micro level cannot be said to be sufficient to discard the prosecution case; (iv) Minor contradiction between the evidence before the Court and statement recorded by the police under Section 161 Cr.P.C. are not sufficient to dislodge or discredit the evidence; (v) Conviction on the basis of sole testimony of a single witness can be founded upon if the evidence is found fully creditable or trustworthy. 15. PW1 Rajneesh Kumar is an injured witness. The law relating to the appreciation of the evidence of an injured witness is also well established. If a witness has stood the test of cross-examination and his testimony is confidence inspiring and is not open it out, the evidence of such witness cannot be discarded, on the ground that another witness has given a version, which is inconsistent therewith. If a witness is trustworthy and reliable, his statement must prevail upon all other inconsistent statements. 16. In the instant case, injured (PW1) categorically stated that he was busy in irrigating his field. When he reached near the house of respondent, his father Salig Ram (deceased) objected to for taking the water and used abusive language. In the meanwhile, respondent Suresh Kumar came there with an iron-pipe (Ex.P1) and suddenly dealt a blow on his face, due to which his one tooth got fractured and the injury started bleeding, the second blow was given on his left arm by him, thereafter went inside his room and bolted the door. His father started scuffling with him, it was thereafter PW4 Chaino Ram came to the spot along with his father PW3 Jagdish. His father started scuffling with him, it was thereafter PW4 Chaino Ram came to the spot along with his father PW3 Jagdish. He was subjected to the meticulous cross-examination. He admitted that the water channel was flowing through the front of the house of respondents and the flow of water was being maintained by him to his Litchi orchard. He admitted that even earlier to the said incident, there was a dispute inter se them with respect to the use of water and that the fields of the respondents are on a higher level than his orchard, but however denied that he had tried to divert the flow of water towards his orchard forcibly. He also admitted that PW4 Chaino Ram and his father visited the spot after the incident. 17. PW3 Jagdish stated that he alongwith Chaino Ram visited the spot and relieved PW1 Rajneesh from the clutches of the respondents, whereas, PW4 Chaino Ram stated that when he reached the spot, the complainant was lying injured in the courtyard of the respondents and the door of the house of the respondents was closed. He admitted in his cross-examination that he was not present at the time of incident, but he heard the noise and when reached the place of incident, the complainant was lying injured on the ground, but no quarrel was going on. He also admitted that when he reached the spot, the father of Rajneesh was on his way to the place of incident. 18. No doubt, the father of the complainant stated that he had reached the spot alongwith Chaino Ram and they relieved the complainant from the clutches of the respondents, but the evidence of the victim PW1 Rajneesh Kumar cannot be discarded on the ground that his father gave a version inconsistent with his statement. PW1 has not been shaken in his cross-examination qua the statement. He clearly attributed the injuries having been caused by the appellant Suresh Kumar. The testimony of the aforesaid witness cannot be disbelieved, on the ground that his version is inconsistent with the statement given by his father, rather PW4 Chaino Ram offers a material corroboration as he was attracted by the noise and came to the spot and saw the injured lying in the courtyard of the respondents. 19. Further the injuries on his person have been corroborated by the testimony of PW2 Dr. 19. Further the injuries on his person have been corroborated by the testimony of PW2 Dr. Mohan Chaudhary, who had initially examined him. The description and nature of injuries noticed by him have been given supra. He stated that injures No.1 and 2 were simple in nature, caused with blunt weapon, whereas for injury No.3 complainant was referred to PW7 Dr. Raman Vaid, a dental surgeon. PW7 Dr. Vaid noticed the injury on the left angle of the mouth of PW1 Rajneesh through and through alongwith the body of mandible of left upper three teeth as stated by him. At that time the injured found it difficult to open his mouth. Injured had also produced the broken tooth of the crown of the upper incisor to the doctor, which was sealed and later produced in the court to which he identified. After the x-ray of the said injury, the doctor opined that the broken tooth was of the root stump found in the upper jaw and issued MLC Ex.PW7/A. The probable duration of the injury was within 24 hours with a blunt weapon like iron pipe. In cross-examination, none of the doctors could be shattered with the injuries in question. 20. On the critical examination of the aforesaid evidence, I do not find any infirmity in the statement of the victim, which is duly supported by the independent witness as well as the doctors and it has been proved on record beyond reasonable doubt that it is the respondent Suresh alone, who caused the injuries in question to PW1 Rajneesh Kumar. The reason for attacking the complainant by the respondent is attributable to the long standing dispute on the use of water. This enmity is double edged and supplies a motive. The contradictions noticed by the learned trial Court in the statements of the father of the victim and Chaino Ram are of no consequence. 21. Insofar as the recovery of iron pipe is concerned, Chaino Ram is categoric in substantiating the case of the prosecution with respect to its recovery. Otherwise also it is corroborative evidence which is not of much importance which could discard the prosecution version. 22. 21. Insofar as the recovery of iron pipe is concerned, Chaino Ram is categoric in substantiating the case of the prosecution with respect to its recovery. Otherwise also it is corroborative evidence which is not of much importance which could discard the prosecution version. 22. For the reasons aforesaid, I conclude that the findings of acquittal recorded by the learned trial Court are wrong and perverse and further omissions and contradictions which have been pointed out by the learned trial Court are insignificant and the micro level also cannot be said to be sufficient to discard the prosecution case in view of the confidence inspiring testimony of the injured witness. Therefore, appeal filed by the State is allowed and the acquittal passed by the learned trial Court is hereby reversed. The respondent Suresh Kumar is held guilty for the offences punishable under Section 323 and 325 of the Indian Penal Code for voluntarily causing simple hurt qua injures No.1 and 2 and for causing grievous hurt i.e. fracture of tooth of the complainant in respect of Injury No.3. Therefore, he stands convicted for the aforesaid offences for which he was charged. 23. Now convict Suresh Kumar be produced on 22.10.2010, for hearing him on the quantum of sentence. In the meantime, report of the Probation Officer concerned be also called for. 24. At this stage, learned counsel for the convict has expressed his inability to produce him. As such, bailable warrants in the sum of Rs.5,000/- be issued to secure the presence of convict Suresh Kumar on the date fixed.