Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 826 (HP)

State of Himachal Pradesh v. Madan Lal

2012-11-15

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. State has come in appeal against the judgment of the learned Sessions Judge, Kangra at Dharamshala rendered in Sessions Case No. 29-P/VII-2003 whereby respondents, who were charged with and tried for offences punishable under sections 307, 323 324 and 326 read with section 34 of the Indian Penal Code, have been acquitted on 1.7.2004. 2. Case of the prosecution, in a nutshell, is that PW-1 Dr. Vinay Mahajan sent a Rukka Ex.PW-1/A to Police Station, Palampur on 30.10.2002 that two persons, namely, Kuldeep Raj and Purshottam Chand have been brought to the hospital in injured condition. The information was recorded in daily diary report Ex.PW-8/A. PW-11 Onkar Singh, ASI was deputed to the Sub-Divisional Hospital, Palampur. He moved an application Ex.PW-1/G before the Medical Officer to opine whether the injured were in a fit condition to make statement and also to medically examined them. According to PW-1 Dr. Vinay Mahajan, Kuldeep Raj alias Deep Raj was not fit to make statement, however, Purshottam Chand was fit to give statement. Accordingly, statement of PW-2 Purshottam Chand Ex.PW-2/A was recorded under section 154 of the Code of Criminal Procedure by ASI Onkar Singh. According to statement Ex.PW-2/A, the complainant was army personnel and had come on leave. On 30.10.2002 at about 8.30 P.M. when he was present in his house, he heard some noise emanating from Chowk. He found that his younger brother Deep Raj alias Kuldeep Raj was being beaten by the accused. According to him, accused Madan Lal and Kalyan were armed with Darat whereas accused Dolma was having a Phawra in her hand. When the complainant intervened and asked accused Madan Lal as to why they were beating his brother, later made an assault with Darat on the left leg of the complainant and second assault was made on his right hand. He ran away from the spot. He found injuries on the head, left shoulder, left arm and left leg of his brother. Thereafter, F.I.R. Ex.PW-12/A was recorded. PW-2 Purshottam and PW-3 Kuldeep Raj were medically examined by PW-1 Dr. Vinay Mahajan. He issued MLCs Ex.PW-1/D and Ex.PW-1/F, respectively. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 13 witnesses in all. Statements of accused under section 313 were recorded. The case of the accused is of simplicitor denial. Vinay Mahajan. He issued MLCs Ex.PW-1/D and Ex.PW-1/F, respectively. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 13 witnesses in all. Statements of accused under section 313 were recorded. The case of the accused is of simplicitor denial. The trial court has acquitted the accused on 1.7.2004. It is in these circumstances, the State has filed the present appeal. 4. Mr. Vivek Thakur, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. According to him, the trial court has not correctly appreciated the oral as well as documentary evidence. 5. Mr. Yudhbir Singh Thakur has supported the judgment of acquittal. 6. We have heard the learned counsel for the parties and have perused the records carefully. 7. PW-2 Purshottam Chand has testified that in the month of October, 2002, he had come on leave for ten days. On 30.10.2002 at about 8.30 P.M., he was present in his house. He heard the noise from Chowk side “Bachao-Bachao”. He went to the spot. He saw his younger brother Deep Raj alias Kuldeep Raj being beaten by the accused persons. According to him, accused Madan Lal was carrying Darat Ex.P-1, Sanjay was holding dagger Ex.P-2 and Dolma Devi was having Phawra Ex.P-3 in her hand. His younger brother suffered injuries on his body. He intervened and asked Madan Lal as to why they were beating his brother. They did not listen to him and Madan Lal attacked him with Darat on his head, which blow he warded off but the blow hit his right hand. He was assaulted with Darat by Madan Lal on the left leg. He ran away from there towards fields of Rasila Ram. Rasila Ram opened the door of his house and had some conversation with Madan Lal. His statement Ex.PW-2/A was recorded by the police. 8. PW-3 Deep Raj has deposed that accused Sanjay and his father Madan Lal were running a tea stall (Khokha) at Zia Chowk for the last two years. He left Zia Chowk on 30.10.2002 at about 8.00 P.M. He was sitting in the shop of Dhani Ram. Sanjay closed his Khokha and came to the shop of Dhani Ram. He threatened him. Thereafter, accused Sanjay went away to his house. He left Zia Chowk on 30.10.2002 at about 8.00 P.M. He was sitting in the shop of Dhani Ram. Sanjay closed his Khokha and came to the shop of Dhani Ram. He threatened him. Thereafter, accused Sanjay went away to his house. According to him, after sometime Sanjay, Madan Lal and Dolma came there. Madan Lal was armed with Darat, Sanjay was having Khukhri and Dolma Devi was having Phawara in her hands. They attacked him. Sanjay inflicted injury with Khukhri on his fore-head and Madan Lal inflicted injuries on his shoulder, back and arm. Dolma inflicted injury with Phawara on his leg. He pushed the accused to save himself. 9. PW-4 Sh. Rasila Ram has testified that Deep Raj had come to his house on 30.10.2002 at about 8.45 P.M. and told that he was beaten by accused Madan Lal. In the meantime, Purshottam (PW-2) also came there and disclosed that he was beaten by Madan Lal and he has suffered injuries. 10. PW-5 Sh. Jhomphi Ram has deposed that he was associated during the course of investigation by the Police. According to him, Darat Ex.P-1 was produced by accused Madan Lal, PW-6 Smt. Kalpana Chaudhary has deposed about the recovery of Phawara. PW-7 Onkar Chand has deposed about the recovery of knife. PW-8 Sanjeev Kumar has deposed that he has recorded Rukka Ex.PW-1/A on 30.10.2002. PW-9 Ram Chand has deposed about the depositing of weapons, i.e. Darat, Khukhri and Phawara with him as M.H.C. PW-10 Parkash Chand had taken the parcels to Forensic Science Laboratory, Bharari. 11. PW-11 ASI Onkar Singh has investigated the case. He has prepared site plan Ex.PW-11/B. He has taken into possession the weapons of offence Ex.P-1 to P-3. PW-12 Shakti Chand has stated about the recording of F.I.R. Ex.PW-12/A. According to PW-13 Dr. Arvind Bhan, Medical officer, X-ray of skull of Kuldeep Raj was conducted under his supervision. His report is Ex.PW-13/A. No fracture was found by him. 12. PW-2 Purshottam and PW-3 Deep Raj were medically examined by PW-1 Dr. Vinay Mahajan. He noticed the following injuries on the person of Deep Raj: 13. PW-1 issued MLC Ex.PW-1/D. According to him, injuries No.3, 4 and 5 could be caused with Darat Ex.P-1 and dagger Ex.P-2. Rest of the injuries were possible with Phawara Ex.P-3. Duration of injuries was within six hours. PW-1 also medical examined PW-2 Purshottam. Vinay Mahajan. He noticed the following injuries on the person of Deep Raj: 13. PW-1 issued MLC Ex.PW-1/D. According to him, injuries No.3, 4 and 5 could be caused with Darat Ex.P-1 and dagger Ex.P-2. Rest of the injuries were possible with Phawara Ex.P-3. Duration of injuries was within six hours. PW-1 also medical examined PW-2 Purshottam. He noticed following injuries on the person of PW-2 Purshottam: i) “A lacerated wound 2” long 0.25 cm deep irregular margins, bleeding on touch on the left side of forehead over left fronto-parietal region. ii) A haenetome 1.5” in diameter, tender, under lying injury No.1. iii) An incised wound 1.5” long, clean margins bleeding on the right side of forehead. iv) An incised wound clean margins, 4” long bleeding on the lateral aspect of upper 1/4th of left thigh. v) An incised wound 1” long on the extensor surface of left upper arm 1” above left elbow joint. vi) Multiple abrasions of different shapes and sizes reddish in colour on right shin. vii) Tenderness and swelling present on left forearm, upper arm and left shoulder joint. For this advised X-ray left fore-arm, with arm and with shoulder joint and consultation of orthopaedician was advised.” i) “An incised wound 4” long, clean margins underlying structures, and fascia exposed on left leg, extending from the lateral margin of left knee joint. Bleeding. X-ray for left leg with knee was advised. ii) Multiple abrasions reddish in colour of different shapes and sizes on the dorsum of right hand.” 14. According to PW-1, X-ray was conducted in respect of Purshottam and fracture of right tibia was found which was grievous in nature. Injuries No.1 and 2 could be caused with weapon like Ex.P-1 and P-2. PW-1 issued MLC Ex.PW-1/F. According to PW-1, when he examined Kuldeep Raj alias Deep Raj, he was drowsy and was smelling of alcohol. According to PW-1 Dr. Vinay Mahajan, he examined Madan Lal accused and noticed the following injuries on his person: i) “A lacerated wound 1.5” long linear, irregular margins 0.25 cms deep on scalp over left parieto-temporal region, bleeding on touch. ii) A punctured wound ½ cm long bleeding on touch on left side of forehead just above lateral angle of left eye. iii) Tenderness and swelling present on left hand for which X- ray of left hand was advised. ii) A punctured wound ½ cm long bleeding on touch on left side of forehead just above lateral angle of left eye. iii) Tenderness and swelling present on left hand for which X- ray of left hand was advised. iv) Multiple abrasions of different shapes and sizes, reddish in colour on left forearm and arm.” 15. PW-1 issued MLC Ex.D-1 in respect of accused Madan Lal. Similarly, he examined accused Sanjay and found following injuries on his person: i) “A lacerated wound 3” long on the middle of forehead, irregular margins 0.25 cms deep bleeding. ii) A lacerated wound triangular in shape on the palmar aspect of left fore-finger. iii) Tenderness and swelling present on left shoulder joint alongwith scapula. For this X-ray left shoulder and scapula advised. iv) An abrasion reddish in colour 1 cm long on the middle of superior border of left scapula.” 16. PW-1 issued MLC Ex.D-2 in respect of accused Sanjay. According to him, injuries No. 1 to 3 were possible with blunt weapon like danda and injury No.1 was on forehead, which is a vital portion of the body. According to him, original MLCs were handed over to the police during the same night. He also deposed that Kuldeep Raj, Purshottam Chand, Madan Lal and Sanjay were medically examined by him within two hours. 17. PW-2 Purshottam, in his cross-examination, has deposed that Sanjay was having dagger in his hand but he has not stated so when his statement Ex.PW-2/A was recorded. He has not mentioned that Madan Lal aimed a Darat blow on his head which he warded off by raising hand. He has also not stated in Ex.PW-2/A that Rasila Ram opened the door of his house when Kuldeep had shouted for help. He feigned his ignorance about the injuries received by accused Madan Lal and Sanjay. He has also deposed that his brother was not on talking terms with the accused for the last three years. PW-3 in his cross-examination has admitted that he was not in talking terms with accused for the last more than three years. He has not stated in his statement recorded under section 161 of the Code of Criminal Procedure that Madan Lal had inflicted injury on him with Darat on shoulder and back. He has also not mentioned in his statement that he pushed the accused in order to save himself. He has not stated in his statement recorded under section 161 of the Code of Criminal Procedure that Madan Lal had inflicted injury on him with Darat on shoulder and back. He has also not mentioned in his statement that he pushed the accused in order to save himself. He also did not disclose that he became unconscious in the house of Rasila Ram. As far as PW-4 Rasila Ram is concerned, he has admitted that he did not see any altercation or quarrel taking place between the parties. He has not noticed any injury on the person of Madan Lal. 18. So far as the recovery of weapons Ex.P-1 to P-3 is concerned, the same has not been proved in accordance with law. PW-5 Jhomphi Ram has deposed that he did not enter the house of Madan Lal on 31.10.2002 for recovery of Darat. He remained standing with the police at Zia Chowk. PW-6 Smt. Kalpana Chaudhary, whose statement was recorded for the purpose of recovery of Phawara, was declared hostile. PW-7 Onkar Chand, who was associated for the purpose of recovery of knife, was also declared hostile. 19. It has come on record that the accused were also beaten up and were medically examined by PW-1 Dr. Vinay Mahajan. He issued MLCs Ex.D-1 and D-2 in respect of accused. Accused have received several injuries, which have not been explained by the prosecution. PW-8 H.C. Ram Chand has admitted that FIR No. 347/2002 for offences punishable under sections 325, 323 read with section 34 of the Indian Penal Code was registered at the instance of Sanjay and Madan Lal against the complainant party. PW-12 Shakti Chand has admitted that MLCs of accused were also collected by the police, but they were not placed on record including F.I.R. No. 347/2002 dated 1.11.2002. It has come during the course of investigation also that the complainant-party was armed with Danda and sharp edged weapon when they attacked the accused persons. 20. What emerges from the evidence discussed hereinabove is that it is the complainant-party, who had attacked the accused persons and their Khokha was also damaged by them. The weapons of offence Ex.P-1 to Ex.P-3, as noticed above, have not been recovered in accordance with law. The injuries received by accused Madan Lal and Sanjay have not been explained. 20. What emerges from the evidence discussed hereinabove is that it is the complainant-party, who had attacked the accused persons and their Khokha was also damaged by them. The weapons of offence Ex.P-1 to Ex.P-3, as noticed above, have not been recovered in accordance with law. The injuries received by accused Madan Lal and Sanjay have not been explained. Rather, the prosecution has not placed on record the copy of FIR No. 347/2002 dated 1.11.2002 alongwith MLCs Ex.D-1 and D-2. It has also come in the statement of PW-1 Dr. Vinay Mahajan that Kuldeep Raj alias Deep Raj had consumed liquor and was smelling of alcohol at the time of his medical examination. It has also come in the statement of PW-11 Onkar Singh that PW-6 Kalpana Chaudhary and PW-7 Onkar Chand were residents of Dadh, which was about 5 KMs from Zia Chowk. It has also come in the statement of PW-11 Onkar Singh that Deep Raj alias Kuldeep Raj was not having good relations with the accused. 21. In these circumstances, trial court has rightly come to the conclusion that the accused have acted in their self defence to save their property and person and while doing so they have not exceeded their right. There are several improvements which have been made by PW-2 Purshottam and PW-3 Kuldeep Raj in the statements made before the court. 22. Consequently, in view of the observations and discussions made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged. No costs.