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2012 DIGILAW 580 (UTT)

NARENDRA KUMAR BANSAL v. STATE OF UTTARANCHAL

2012-09-13

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 14.11.2000, passed by learned Sessions Judge, Uttarkashi, in Session Trial No. 12 of 1997, whereby said court has convicted accused/appellant Narendra Kumar Bansal under section 307 IPC, and sentenced him to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 5,000/- . In default of payment of which the convict was directed to undergo simple imprisonment for a period of six months. 2. Heard learned Amicus Curiae for the appellant, and learned counsel for the State and perused the lower court record. 3. Prosecution story, in brief, is that P.W.1 K.L. Arora, was Executive Engineer with Irrigation Construction Division, Purola, District Uttarkashi. Accused/appellant Narendra Kumar Bansal was Assistant Engineer of the same department. On 09.07.1996, at about 11:30 a.m., accused/appellant Narendra Kumar Bansal entered in the office of the Executive Engineer, and assaulted him with LATHI (stick) on his head due to which the injured started bleeding. P.W.2 Nilamber Dutt (cashier of the same office) witnessed the incident. P.W.3 Khajan Singh (Chawkidar) said to have rushed inside the office on hearing the noise in the room of the Executive Engineer, and saw P.W.1 K.L. Arora in the injured condition. The witnesses (P.W.2 Nilamber Dutt, P.W.3 Khajan Singh and some other employees) immediately dragged accused/appellant Narendra Kumar Bansal out from the office room of the Executive Engineer. P.W.1 K.L. Arora, telephonically informed the Station House Officer of Purola, and also gave information to the Sub Divisional Magistrate on phone. After sometime, the Sub Divisional Magistrate reached at the spot, and the injured officer was taken to hospital where his injuries were examined by P.W.6 Dr. S.P. Agarwal in Primary Health Center, Purola, who prepared injury report (Ex. A6). The injury was simple in nature. First Information Report (Ex. A1) of the incident was got lodged by injured K.L. Arora, the Executive Engineer, on the very day at about 12:15 p.m., i.e., within 45 minutes of the incident. On the basis of said report crime no. 33 of 1996, was registered at Police Station Purola in respect of offences punishable under section 307, 332, 506 IPC. A1) of the incident was got lodged by injured K.L. Arora, the Executive Engineer, on the very day at about 12:15 p.m., i.e., within 45 minutes of the incident. On the basis of said report crime no. 33 of 1996, was registered at Police Station Purola in respect of offences punishable under section 307, 332, 506 IPC. The investigation was conducted by P.W.8 S.I. Harbeer Singh Rathi who interrogated the witnesses, inspected the spot, collected the blood stained clothes, and after completion of investigation submitted charge sheet (Ex. A9) against accused/appellant Narendra Kumar Bansal for his trial in respect of offences punishable under section 307, 332 and 506 IPC. 4. The Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for their trial. On 06.11.1996, learned Sessions Judge, Uttarakashi, after hearing the parties, framed charge of offences punishable under section 307 and 506 IPC only, against the accused Narendra Kumar Bansal who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 K.L. Arora (injured Executive Engineer), P.W.2 Nilamber Dutt (eye witness and cashier in the office of the injured), P.W.3 Khajan Singh (Chawkidar), P.W.4 V.P. Dangwal [who is witness of recovery memo (Ex. A2) of the recovery of blood stained clothes], P.W.5 Head Constable Banmali Singh, P.W.6 Dr. S.P. Agarwal (who medically examined the injured), P.W.7 Sub Inspector Sarv Chand and P.W.8 Sub Inspector Harbeer Singh Rathi (who inspected the crime). 5. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he (Narendra Kumar Bansal) admitted that injured K.L. Arora (P.W.1) Executive Engineer, was present in the office on 09.07.1996. He further admitted that he (Narendra Kumar Bansal) was Assistant Engineer working under the injured, and rest of the evidence was denied by him as false. However, he admitted that P.W.2 Nilamber Dutt was Cashier, and P.W.3 Khajan Singh was Chawkidar in the office. He pleaded that he has been falsely implicated due to enmity. In defence accused/appellant Narendra Kumar Bansal got himself examined as D.W.1 with permission under section 315 Cr.P.C. He further got examined D.W.2 Naresh Thakur and D.W.3 Vishal Singh, a contractor. However, he admitted that P.W.2 Nilamber Dutt was Cashier, and P.W.3 Khajan Singh was Chawkidar in the office. He pleaded that he has been falsely implicated due to enmity. In defence accused/appellant Narendra Kumar Bansal got himself examined as D.W.1 with permission under section 315 Cr.P.C. He further got examined D.W.2 Naresh Thakur and D.W.3 Vishal Singh, a contractor. After hearing the parties, the trial court found that prosecution has successfully proved charge of offence punishable under section 307 IPC, against accused/appellant Narendra Kumar Bansal and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of three years, and directed to pay fine of Rs. 5,000/-, in default of payment of which the convict was directed to undergo simple imprisonment for further period of six months. However, the accused Narendra Kumar Bansal was acquitted from the charge of offence punishable under section 506 IPC. Aggrieved by said judgment and order dated 14.11.2000, passed by learned Sessions Judge, Uttarkashi, in Sessions Trial No. 12 of 1997, this appeal is filed by the convict. 6. Before further discussion this Court thinks it just and proper to mention the injury said to have been suffered by P.W.1 K.L. Arora on 09.07.1996, which is recorded by P.W.6 Dr. S.P. Agarwal on the same day in the injury report (Ex. A6). The same is being reproduced below: “Lacerated wound over right side of head parietal region 10 cm above ear pinna. Size 5 x 1 cm x 1 cm deep, margins irregular. Bleeding present. Colour fresh”. P.W.6 Dr. S.P. Agarwal observed in the injury report that above mentioned injury was simple in nature. However, this Court has to examine whether it is proved by the prosecution or not that aforesaid injury was caused on person of K.L. Arora (P.W.1) by accused/appellant Narendra Kumar Bansal if so what offence it constitutes. 7. P.W.1 K.L. Arora, Executive Engineer of Irrigation Construction Division, Purola, is the star eye witness who has suffered the above mentioned injury. He has stated that on 09.07.1996, he was sitting in his office when at 11:30 a.m., accused Narendra Kumar Bansal armed with LATHI (stick) entered in the office. The witness has further narrated that cashier Nilamber Dutt (P.W.2) was also present inside the office. He has stated that on 09.07.1996, he was sitting in his office when at 11:30 a.m., accused Narendra Kumar Bansal armed with LATHI (stick) entered in the office. The witness has further narrated that cashier Nilamber Dutt (P.W.2) was also present inside the office. He further told that accused Narendra Kumar Bansal assaulted him on his head, and the injury suffered by him at the hands of the accused, started bleeding. P.W.1 K.L. Arora further stated that in the incident his spectacles and pen also got broken. The witness further stated that chawkidar Khajan Singh and peon Sobat Singh rushed inside the office and stopped accused from further assaulting him. P.W.1 K.L. Arora, the Executive Engineer, told that aforesaid two class four employees took out accused Narendra Kumar Bansal from the office. The witness has further told that he gave information of the incident to the police station on phone and also informed the Sub Divisional Magistrate, Purola. He further told that he was taken by the Sub Divisional Magistrate to the Primary Health Center, Purola, where his injury was examined. The witness has proved the first information report (Ex. A1) lodged by him. P.W.1 K.L. Arora, the injured, further told that the police took his blood stained shirt, and under shirt into their possession and recovery memo (Ex. A2) was prepared. This witness has been subjected to lengthy cross-examination but nothing has come out which creates doubt in his testimony. 8. The statement of P.W.1 K.L. Arora, the Executive Engineer gets corroboration not only from the medical evidence already discussed but also from the statement of P.W.2 Nilamber Dutt an employee in the office who was also eye witness of the incident. The incident further gets corroboration from the statement of P.W.3 Khajan Singh who entered in the office on hearing the noise, and dragged out accused Narendra Kumar Bansal from the office. 9. P.W.4 V.P Dangwal, has corroborated the collection of the blood stained clothes by the police regarding which recovery memo (Ex. A2) is prepared. 10. The incident further gets corroboration from the statement of P.W.3 Khajan Singh who entered in the office on hearing the noise, and dragged out accused Narendra Kumar Bansal from the office. 9. P.W.4 V.P Dangwal, has corroborated the collection of the blood stained clothes by the police regarding which recovery memo (Ex. A2) is prepared. 10. On reappreciation of the entire evidence on record, this Court finds that prosecution has successfully proved that the accused/appellant Narendra Kumar Bansal voluntarily caused hurt with a deadly weapon (LATHI) on the head of his senior officer K.L. Arora (P.W.1) but considering that the injury was simple in nature, and the fact that no other injury was caused, this Court is of the view that the act on the part of the accused/appellant Narendra Kumar Bansal constitutes offence punishable under section 324 IPC i.e., voluntarily causing hurt with deadly weapon, and not the offence punishable under section 307 IPC (attempt to commit murder). 11. Learned Amicus Curiae read out statement of D.W.1 Narendra Kumar Bansal (accused/appellant) who appears to have been examined after seeking permission under section 315 Cr.P.C. D.W.1 Naresh Kumar Bansal has stated that K.L. Arora (P.W.1) had called him on the day of incident, and when he entered in the office alongwith Naresh Thakur (D.W.2), Shri K.L. Arora who used to harbour enmity with him told the accused that either he (K.L. Arora) or the accused would remain in the District. It is also stated by D.W.1 Narendra Kumar Bansal that K.L. Arora (P.W.1) charged him of remaining absent from duty in Barkot without leave. The defence witness further told that thereafter K.L Arora started hurling abuses at him, and implicated him after pouring red ink on his shirt. D.W.2 Naresh Thakur who was subordinate employee of the accused at Barkot and D.W.3 Vishal Singh, a contractor, have supported the accused but the testimony of these witnesses appears to be a concocted story only to save the accused from the punishment. On the other hand, the prosecution story narrated by P.W.1 K.L. Arora cannot be doubted as it is further corroborated not only by the eye witness P.W.2 Nilamber Dutt but also from the statement of P.W.6 Dr. S.P. Agarwal who recorded injury in the injury report. Said witness (P.W.6) cannot be said to be interested one. 12. For the reasons as discussed above, this appeal deserves to be partly allowed. S.P. Agarwal who recorded injury in the injury report. Said witness (P.W.6) cannot be said to be interested one. 12. For the reasons as discussed above, this appeal deserves to be partly allowed. Accordingly, the appeal is disposed of with the direction that the conviction and sentence recorded by the trial court under section 307 IPC, against accused/appellant Narendra Kumar Bansal is hereby set aside, instead he is convicted under section 324 IPC, and sentenced to rigorous imprisonment for a period of one year, and directed to pay fine of Rs. 5,000/-. In default of payment of which he shall undergo simple imprisonment for further period of six months. If the fine is already deposited in response to the trial court’s order he need not to deposit fresh amount of fine. Accused/appellant Narendra Kumar Bansal is on bail. His bail is cancelled. He is directed to surrender before the court concerned. Lower court record be sent back to make accused/appellant serve out the sentence as modified by this Court.