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2012 DIGILAW 199 (HP)

Karam Singh v. State of H. P.

2012-04-17

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT Justice V.K. Ahuja, J.: This appeal has been preferred by the appellants against the judgment, dated 26.6.2003/28.6.2003, passed by learned Sessions Judge, Solan, vide which the appellants were held guilty under Sections 324, 323 and 506 IPC and were sentenced as under: Section324 IPC RI for a period of six months and to pay a fine of Rs.1,000/-; in default of payment of fine, the appellants were to further SI for a period of one month.Section 323 RI for a period of two months and to pay a fine of Rs.500/-; in default of payment of fine, the appellants were to further SI for a period of 15 days.Section 506 RI for a period of six months and to pay a fine of Rs.1,000/-; in default of payment of fine, the appellants were to further SI for a period of one month.However, the appellants were acquitted of the charge framed against them under Section 307 IPC. 2. This appeal has been filed by State of H.P. against the aforesaid judgment of the learned Sessions Judge, Solan vide which the accused were acquitted of the charge framed against them under Section 307 of the I.P.C. 3. This judgment shall dispose of both these appeals. 4. Briefly stated, the facts of the case are that on 10.11.2002 at 6.30 p.m., a police officer recorded the statement of one Naresh Kumar under Section 154 Cr.P.C. It was alleged by the complainant that he alongwith one Dharam Singh had gone today to Radiana from Solan and were returning at 4.30 p.m. He alleged that one Karan Singh (wrongly mentioned as Karam Singh in memo of parties), Sanjeev Kumar and Neelam, who are the residents of Police Station, Dharampur, came there and stopped their vehicle. Karan Singh was having a knife, Neelam was having a chain and Sanjeev Kumar was having a danda. They started giving beatings to Dharam Singh without any talks having been held. Karan Singh gave a knife blow to Dharam Singh, Neelam gave a blow with chain and Sanjeev Kumar gave danda blows on his head. They both ran towards petrol pump to save themselves. It was also alleged by him that near the petrol pump, one Satish Kumar was present. All these three persons had earlier also given them beatings and were having some enmity with them. 5. They both ran towards petrol pump to save themselves. It was also alleged by him that near the petrol pump, one Satish Kumar was present. All these three persons had earlier also given them beatings and were having some enmity with them. 5. On this report, a case was registered and after investigation, the challan was filed before the learned Chief Judicial Magistrate, Solan, who committed the case to the learned Sessions Judge. The Sessions Judge tried the accused for offence punishable under Sections 307, 324 and 506 read with Section 34 IPC leading to their conviction and sentence, as detailed above. 6. We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General for the State and Mr.N.S. Chandel, Advocate, for the accused, and have also gone through the record of the case. 7. We may make a reference to the principal witnesses recorded by the learned trial Court. Complainant Naresh Kumar has been examined as PW-2, who reiterated the facts as alleged by him in his statement under Section 154 Cr.P.C., Ext.PB. He has also identified danda Ext.P-5, knife Ext.P-4 and chain Ext.P-6 as the same which were used by the accused. In cross examination, it was suggested to him that they were in the stage of intoxication and they had picked up a quarrel, meaning thereby that the occurrence in question has not been disputed by the accused as per cross examination of this witness. 8. PW-3 Dr.G.D. Rohit had medically examined Dharam Singh, PW-1 and found the following injuries on his person: “1. A lacerated wound on left anterior parital region 5 cm x 1 cm x 1 cm clotted blood present on wound. 2.A lacerated wound on right anterior parital region 3 cm x 1 cm x 1 cm clotted blood present on wound.3.A lacerated wound on right occipital region 3 cm x 1 cm x 1 cm clotted blood present.4.A lacerated wound left occipital region 3 cm x 1 cm x 1 cm clotted blood present. 5.A lacerated wound behind left ear 1 cm x 0.5 cm x 0.5 cm clotted blood present on wound. External carotid artery left is having abrasion and bleeding measurement 0.1m x 0.1 m x 0.1 m.6.Incised wound right ring finger and left litter finger each measuring 3 cm x 1 cm x 1 cm. 5.A lacerated wound behind left ear 1 cm x 0.5 cm x 0.5 cm clotted blood present on wound. External carotid artery left is having abrasion and bleeding measurement 0.1m x 0.1 m x 0.1 m.6.Incised wound right ring finger and left litter finger each measuring 3 cm x 1 cm x 1 cm. clotted blood present.7.An incised wound on dorsum and ulner side of right hand just anterior to right wrist joint measuring (4 fingers) 6.8 cm x 2 cm x 2 cm. clotted blood present on wound and surrounding. Case was referred to DH Solan for X-ray skull and right hand.Ondated12.11.2002 X-ray No.482-84 dt.11.11.2002 skull and right hand did not show evidence of facture as reported by Radiologist DH Solan.” 9. PW-3 Dr.G.D. Rohit also observed as under: “Injuries No.1 to 7 were simple in nature having been caused within 1 hour from the time of examination. I have seen the medico legal certificate. It is correct that it is in my hand and bears my signatures and it is Ext.PC. Injuries No.1 to 5 are caused by blunt weapon whereas injury No.6 and 7 are caused by sharp weapon.” 10. PW-3 Dr.G.D. Rohit also stated that injuries No.1 to 5, especially injury No.5, might have been life taking if medical aids were not available immediately. He further stated that the victim Dharam Singh was referred to District Hospital, Solan for X-ray of skull and right hand. He opined that injuries No.6 and 7 shown in Ext.PC could be caused by knife Ext.P4. Injury No.1 to 5 could be caused with a danda Ext.P-5 and chain Ext.P-6. 11.PW-3 Dr.G.D. Rohit has further stated that on the same day at about 5.45 p.m., he also examined Naresh Kumar and found the following injuries on his person:“1. An incised wound on left temporo parital region of scalp measuring about 5 cm x 1 cm x 1 cm clotted blood present on the wound and surrounding.Nature of injury was simple and caused within one hour with sharp weapon. This injury can be caused by knife Ext.P4. The said MLC Ext.PE is in my hand and bears my signatures. During investigation the knife said was shown to me and opinion was sought. It was produced in sealed packet and after opening and examining the packet the knife was found and I gave my opinion Ext.PF-1. This injury can be caused by knife Ext.P4. The said MLC Ext.PE is in my hand and bears my signatures. During investigation the knife said was shown to me and opinion was sought. It was produced in sealed packet and after opening and examining the packet the knife was found and I gave my opinion Ext.PF-1. Thereafter given my opinion, I resealed it and handed over the same to police.” 12.He also observed as under: “The injury No.6 and 7 pertaining to Dharam Singh could be caused by said knife and injury on person of Naresh Kumar aforesaid could also be caused by same knife.” 13.In cross examination, he stated that the victim did not disclose the names of the assailants. He further stated that he did not re-examine Dharam Singh and Naresh Kumar on 14.11.2002 when his opinion Ext.PE was sought. He also stated that there could be possibility of causing injury No.5 by scratches. 14.PW-4 Sanjay Kumar has stated that he was going to fill the petrol in his scooter. When he reached near the Printing Press, he saw Dharam Singh and Naresh being beaten by accused Karan Singh, Sanjeev and Neelam. Karan Singh was having a knife, Neelam was having a chain and Sanjeev was having a danda. He stated that when the accused attacked Naresh and Dharam Singh, he ran away from that place and their injuries were bleeding. He also stated that the accused persons chased them and they gave beatings to Dharam Singh and Naresh while running also. He admitted that he is known to Dharam Singh, but he was not his friend. He admitted the suggestion that when he reached the spot, the accused persons had already given beatings to Dharam Singh and Naresh Kumar, but he was not confronted with portion of his statement in examination-in-chief wherein he had specifically stated that injuries were inflicted in his presence. 15.PW-8 H.C. Durga Ram had received the information from Satish Kumar at 4.40 p.m. that two persons have been injured in quarrel and have been removed to PHC, Thari in a private vehicle, which information was written in the rojnamcha and then HHC Bish Ram went for verification of facts. 15.PW-8 H.C. Durga Ram had received the information from Satish Kumar at 4.40 p.m. that two persons have been injured in quarrel and have been removed to PHC, Thari in a private vehicle, which information was written in the rojnamcha and then HHC Bish Ram went for verification of facts. 16.It has been observed by the learned trial Court that in so far as the injuries sustained by Dharam Singh are concerned, they are simple in nature, which were also not on the vital part of the body nor imminently dangerous to his life. There is no evidence to show as to for how many days he remained in the hospital for treatment. It was also observed that no vital part was attacked by the accused persons and injures on the victims were not imminently dangerous to their lives. It was also observed by the learned trial Court that in so far as the injuries are concerned, they were not dangerous nor caused on vital part of the body, and there could be remote chance of becoming these dangerous to life or becoming sufficient in the ordinary course of nature to cause the death of the complainant. It was further observed in regard to injury No.5 by the Medical Officer that it could be caused by scratches. The reasoning given by the learned trial Court, as referred to above and otherwise also, are quite convincing and it is clear that there is nothing to substantiate that the injury, in question, was dangerous to life or death was likely to occur. A perusal of the MLC shows that injuries No.1 to 7 on the person of Dharam Singh were opined as simple in nature caused with one hour.Injuries No.1 to 5 were caused with blunt weapon while injuries No.6 and 7were caused with sharp weapon. In regard Naresh Kumar, injury No.1 was termed as simple and on the basis of the opinion given by the Medical Officer Ext.PF, it was observed that these might have been life taking if medical aids were not available immediately. This in itself is not sufficient to prove the ingredients of Section 307 IPC in view of the injuries on the person of both the injured, as referred to above. 17. From the above discussion, it is clear that the statements of both the injured are consistent and there are no material contradictions. This in itself is not sufficient to prove the ingredients of Section 307 IPC in view of the injuries on the person of both the injured, as referred to above. 17. From the above discussion, it is clear that the statements of both the injured are consistent and there are no material contradictions. The presence of the accused persons at the spot has not been specifically disputed, which stands established from the statements of the two injured and one eye witness and there are no reasons to disbelieve the statements of both the injured coupled with the testimony of the eye witness when they were medically examined within about one hour or so and the report was also lodged on the same day. 18. Coming to the question that the Medical Officer had not written in the history that the injured were attacked by these persons, a perusal of the MLC shows that there is nothing motioned in the MLC in regard to the history and it may that the Medical Officer was not aware that he is supposed to record the history also, as alleged by the victim and it cannot be taken as a ground to disbelieve the version of both the injured. No case was made out under Section 307 IPC and the learned trial Court had rightly acquitted the appellants in the first appeal and respondents in the second appeal of the charge against them under Section 307 IPC. Therefore, the appeal filed by the State is liable to be dismissed, which is dismissed accordingly. 19. However, as far as the appeal filed by the appellants against their conviction under Section 506 IPC is concerned, nothing was stated by PW-1 Dharam Singh and PW­2 Naresh Kumar that any threat was given to them by the appellants. Since there was no evidence of any threat having been given, the appellants were not liable to be held guilty under Section 506 IPC and as such the appeal is partly accepted and the appellants stand acquitted of the charge against them under Section 506 IPC. 20. Since there was no evidence of any threat having been given, the appellants were not liable to be held guilty under Section 506 IPC and as such the appeal is partly accepted and the appellants stand acquitted of the charge against them under Section 506 IPC. 20. However, keeping in view the fact that the appellants were held guilty under Sections 323 and 324 IPC, before considering the question of imposing the sentence upon the appellants, it was required, according to law, for the learned trial Court to have considered the question as to whether they deserved to be given the benefit under Section 4 of the Probation of Offenders Act or not. It is not necessary that the Court must give the benefit to a convict when he is held guilty under Sections 323 and 324 IPC, but the court has to mention reasons for declining this benefit of the said Act. 21. we are of the view that as per the law laid down by this court in State of Himachal Pradesh vs. Shakti Prashad, 1984 ILR (Himachal) 168, it is mandatory to have considered whether the benefit of Section 4 of the Probation of Offenders Act has to be given to the appellants or not. Therefore, the appellants are directed to appear before the District Probation Officer, Solan on 15.5.2012, who shall submit his report to this Court within a period of one month, as far as possible, from the date fixed above. The Registry is directed to put up the appeal after the receipt of the report of the Probation Officer or after the expiry of the period as given above.