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2012 DIGILAW 891 (HP)

Manoj Kumar v. State of Himachal Pradesh

2012-11-27

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. Accused, Manoj Kumar has preferred this petition against the judgment dated 27.9.2006 passed in Criminal Appeal No.16-NL/10 of 2001 by learned Additional Sessions Judge, Solan confirming thereby the judgment dated 17.5.2001 of learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.145/2 of 1997 whereby the accused/petitioner has been convicted for the commission of an offence punishable under Section 326/323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and also to pay Rs.2,000/- as fine under Section 326 of Indian Penal Code, to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/- under Section 323 of Indian Penal Code. 2. The challenge to the impugned judgment is on the ground, inter-alia, that from the record no case under Section 326, Indian Penal Code is made out and, therefore, the findings of conviction for the commission of such offence are not legally sustainable. Although weapon of offence is sharp edged, however, irrespective of there being many injuries allegedly noticed on the person of injured, only injury No.1 is stated to be grievous in nature. The prosecution story has not been supported by PW.5 Lekh Ram, PW.6 Pawan Kumar and PW-7 Darbara Singh. Therefore, the accused should have been given the benefit of doubt as he could have not been convicted on the solitary statement of injured complainant PW.11, Kali Dass. Undue delay as occurred in the registration of the F.I.R. remained unexplained and diary No.10 dated 23.7.2000 which finds mention in the F.I.R., is not produced. The complaint made in writing by PW-2, the son of injured Kali Dass for registration of the case, has not been produced. Also that the weapon of offence was not sent to Serologist for examination to find out as to whether there was human blood present on it or not. Material contradictions in the statements of complainant himself and the other witnesses which rendered the entire prosecution story doubtful were not considered. Therefore, the findings recorded by both the Courts below against the accused/petitioner are stated to be based on conjectures and surmises. It is also the case of accused that in view of the compromise dated 14.12.2005 produced in the lower Appellate Court, application filed by the complainant for compounding the case should have been allowed. Therefore, the findings recorded by both the Courts below against the accused/petitioner are stated to be based on conjectures and surmises. It is also the case of accused that in view of the compromise dated 14.12.2005 produced in the lower Appellate Court, application filed by the complainant for compounding the case should have been allowed. Otherwise also, the petitioner being of very young age and first offender, should have been given the benefit under the Probation of Offenders Act or benevolent provisions of the Code of Criminal Procedure. 3. The report under Section 173 Cr.P.C. and the documents annexed therewith reveals that on 22.7.1997, PW-11 Kali Dass was grazing his goats in village Kayardu. Accused Manoj Kumar came to him and disclosed that he had picked Rs.2500/- belonging to one Ram Sarup, mistakenly. He handed over Rs.2500/- to PW-11 and requested him to return the same to Ram Sarup. The accused further requested PW-11 not to disclose his name to Ram Sarup. 4. In the evening when PW-11 Kali Dass was on the way to his house, PW-5 Lekh Raj happened to meet him around 7.00 p.m. Kali Dass had handed over Rs.2500/- to said Shri Lekh Raj with the instruction to hand over the same to Ram Sarup. Kali Dass had his meals also in the house of Lekh Raj. Thereafter he left for his house in the van of Pawan Kumar PW-6. Dilawar and Kiku Ram were the other occupants of the van. Kali Dass had alighted from the van on the road at Kayardu. While on foot to his house, accused Manoj Kumar and two other persons met him on the way. They assaulted him with stick and as a result thereof he suffered injuries on the head, arms and back. He raised hue and cries, on hearing which his son PW-2 Surinder came to the spot and took him to home. Accused and his co-assailants ran away from the spot. 5. The matter allegedly was reported to the police by injured Kali Dass vide F.I.R. Ex.P-15. He raised hue and cries, on hearing which his son PW-2 Surinder came to the spot and took him to home. Accused and his co-assailants ran away from the spot. 5. The matter allegedly was reported to the police by injured Kali Dass vide F.I.R. Ex.P-15. The Investigating Officer, PW-10, Hari Saran Verma during the course of investigation has visited the spot, prepared site plan Ex.P-16, taken photographs Ex.P-4 to P-8, negatives whereof are Ex.P-9 to Ex.P-13, blood stained earth and stones alongwith one iron rod were also taken into possession in the presence of witnesses, Pawan Kumar and Darbara Singh and collected M.L.C. Ex.P-1/A from PW-1, Dr. N.K. Nargis. 6. Thus, the learned trial Magistrate on going through the record and finding prima facie a case under Sections 326 and 323 of Indian Penal Code made out against the accused, has framed the charge against him accordingly. The prosecution in turn has examined 12 witnesses in all including the complainant PW-11, his son Surinder and also PW-1 the Doctor in order to substantiate the charge against the accused. 7. The accused has also been examined under Section 313 Cr.P.C. He however, opted not to lead any evidence in his defence. Besides, an application was filed in the trial Court seeking permission to compound the case and also in the lower appellate Court for permission to compound the case. 8. Both the Courts, however, have concluded that the prosecution has proved its case under Sections 326 and 323 of Indian Penal Code against the accused beyond all reasonable doubts and convicted him accordingly. The permission to compound the case has been declined on the ground that the case under Section 326 of Indian Penal Code for the commission of which the accused has been convicted being not compoundable, the application is not maintainable. No case, however, was found to have been made out against the accused under Section 341 of Indian Penal Code. 9. Shri G.D. Verma, learned Senior Advocate has made three fold submissions; firstly that there is no iota of evidence which substantiates the findings of conviction and sentence recorded against the accused and that being so, the accused is said to be entitled to be acquitted of the charges framed against him. 9. Shri G.D. Verma, learned Senior Advocate has made three fold submissions; firstly that there is no iota of evidence which substantiates the findings of conviction and sentence recorded against the accused and that being so, the accused is said to be entitled to be acquitted of the charges framed against him. In the alternative, an effort has been made to satisfy this Court to allow the complainant to compound the case in view of the compromise arrived between him and the accused before Khangi Panchayat in terms of the deed of compromise available in the file of the lower appellate Court, and thirdly, the accused being of very young age, in the peculiar facts and circumstances, is either entitled to be released on probation under the Probation of Offenders Act or that under Section 360 of the Code of Criminal Procedure. 10. Learned Additional Advocate General, however, while supporting the judgments rendered in this case by the Courts below has contended that the same are based upon proper appreciation of evidence available on record, hence, need no interference. 11. At the outset, it is pointed out that in the exercise of revisional jurisdiction vested in this Court, the scope of interference with the impugned judgment is very limited as the same can only be interfered with if suffers from illegality or irregularity, not otherwise curable and also on the face of it being perverse. In no other circumstance, the concurrent findings, if based upon proper appreciation of evidence can be interfered with while exercising the revisional jurisdiction vested in this Court under Section 397 of the Code of Criminal Procedure. 12. An opinion that the impugned judgment is not legal and rather suffers from irregularity, not curable and the findings recorded by both the Courts below are perverse, can only be formed by appraisal of the evidence available on record. 13. In the case in hand, the prosecution story right from the beginning is doubtful. If for argument sake, it is believed that it is the accused who had picked up a sum of Rs.2500/- belonging to Ram Sarup, PW-3, why he had chosen PW-11 complainant alone to return the same to said Shri Ram Sarup, should have been appropriately high-lighted during the course of investigation. Nothing has however come on record in this behalf. If for argument sake, it is believed that it is the accused who had picked up a sum of Rs.2500/- belonging to Ram Sarup, PW-3, why he had chosen PW-11 complainant alone to return the same to said Shri Ram Sarup, should have been appropriately high-lighted during the course of investigation. Nothing has however come on record in this behalf. Where was the occasion to the complainant to have handed over this money to PW-5 Lekh Raj for onward transmission to Ram Sarup, because, it has come in the statement of Lekh Raj that Ram Sarup was not related to him and rather one of the residents of his village Urtu, whereas, he is resident of village Diggal. Not only this, but Lekh Raj also handed over this money to one Laxman. This money exchanged many hands, that too, when as per the prosecution story, the accused had requested PW-11 Kali Dass not to tell Ram Sarup that it is he (accused) who returned this money to him. 14. There is no legal and acceptable evidence available on record that complainant, PW-11 had dinner with Lekh Raj (PW-5) in his house. There is no whisper to this effect either in his own statement or also in that of PW-5, Lekh Raj. From where he has boarded the van, allegedly being driven by PW-6 Pawan Kumar, has also no link as nothing to this effect is in his statement and also in that of PW-6 Pawan Kumar. PW-6 rather has denied portion ‘A to A’, ‘B to B’ and ‘C to C’ of his statement Ex.P-11 (Mark ‘B’) recorded by the police during the course of investigation of the case. 15. True it is that there were injuries including grievous in nature on the person of complainant, PW-11. There is, however, no legal and acceptable and clinching evidence suggesting that it is the accused alone, who inflicted the same, more particularly, when as per own version of complainant, he was assaulted by the accused accompanied by 2/3 persons. It is no where the case of the prosecution nor stated by the complainant that the injuries were inflicted to him by the accused alone. When PW-11 admitted the presence of 2/3 more persons on the spot and was assaulted by all of them, who were those persons, the investigating agency should have tried to find out. It is no where the case of the prosecution nor stated by the complainant that the injuries were inflicted to him by the accused alone. When PW-11 admitted the presence of 2/3 more persons on the spot and was assaulted by all of them, who were those persons, the investigating agency should have tried to find out. No doubt, an effort has been made to prove that the accused was alone and not accompanied by any one at the time of occurrence by recording supplementary statement, Ex. DX of the complainant. He, however, while in the witness box as PW-11 has denied portion “A to A”, “B to B” and “C to C” thereof being wrong and further stated that no statement was made by him before the police and rather reiterated that he was assaulted by the accused accompanied by 2/3 persons. Nothing suggesting that efforts to trace out the other persons were made has, however, come on record. The present is a case where it cannot be said that who has inflicted the blows to the complainant. In such a situation to fasten the liability on the accused is un-known in the criminal administration of justice. The findings of conviction without there being any cogent and reliable evidence connecting the accused with the commission of the offence, are in my considered opinion, perverse. 16. Another circumstance is that it is PW-2 Surinder Kumar, the son of injured PW-11 who had submitted written complaint to the police for registration of the case. That written complaint has not seen the light of the day being not produced in the evidence. On the other hand, the F.I.R. Ex.P-15 has been registered at the instance of complainant, Kali Dass. The weapon of offence recovered by the police is iron rod, whereas, in FIR Ex.P-15, the weapon of offence as disclosed was stick. No doubt when confronted with his statement in portion ‘A to A’ of the FIR Ex.P-15, while in the witness box, the complainant PW-11 has stated that he did not disclose to the police that he was beaten up with stick. The facts, however, remain that the weapon of offence was stick or iron rod, is not established on record beyond all reasonable doubts. 17. The facts, however, remain that the weapon of offence was stick or iron rod, is not established on record beyond all reasonable doubts. 17. The subsequent conduct as emerges from the record reveals that as per own version of the complainant, he remained at the place of occurrence till 3.30 a.m., whereas, as per that of his son PW-2, Surinder, on hearing cries of his father, the complainant, he reached on the spot around 11.00 p.m. This contradiction cannot be said to be minor as had the occurrence been taken in the manner as claimed by the prosecution, not only the father, i.e. complainant, but his son should have remembered the exact time and deposed so while in the witness box. 18. Dr. Ram Krishan and Dr. Hans Raj, who as per the statement of PW-2 initially examined the injured were material witnesses and in a better position to have stated something cogent and reliable about the nature of injuries on his person. The prosecution, however, opted not to examine them for the reasons best known to it. 19. The present is a case where the true genesis of occurrence seems to be concealed and the investigation not conducted properly. No doubt, as per settled legal principles, faulty investigation cannot be made basis to let an accused go scot free, however, can be held guilty if his guilt is established with the assistance of cogent and reliable evidence available on record. The evidence, as is discussed supra, and the contradictions pointed out, however, reveals that no finding of conviction against the accused could have been recorded. 20. The testimonies of PW-3 Ram Sarup, PW-5 Lekh Raj, PW-6 Pawan Kumar and PW-7 Darbara Singh do not substantiate the prosecution case as they all turned hostile and being hostile also, no part of their testimony suggests that it is the accused, who inflicted the injuries on the person of complainant, PW-11. 21. An offence punishable under Section 326 of Indian Penal Code can only be made out if the injuries on the person of victim are of such a nature as find mentioned under Section 320 of Indian Penal Code. The same read as follows:- “First. – Emasculation. Secondly.– Permanent privation of the sight of either eye. Thirdly. – Permanent privation of the hearing of either ear. Fourthly. – Privation of any member or joint. Fifthly. The same read as follows:- “First. – Emasculation. Secondly.– Permanent privation of the sight of either eye. Thirdly. – Permanent privation of the hearing of either ear. Fourthly. – Privation of any member or joint. Fifthly. – Destruction or permanent impairing of the powers of any member or joint. Sixthly. – Permanent disfiguration of the head or face. Seventhly. – Fracture or dislocation of a bone or tooth. Eighthly. – Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 22. No doubt, there were eight injuries on the head of injured denoted in the MLC Ex.P-1/A. Injury No.1 being on head in the opinion of Dr. N.K. Nargis was grievous in nature, whereas, the remaining injuries simple in nature. The injuries on the person of complainant certainly do not fall under either situation from first to seventh below Section 320 of Indian Penal Code. The injury No.1 is not even covered under the eighth situation also for want of opinion of the Doctor that the same was dangerous to life or caused the victim to suffer with severe bodily pain for 20 days or prevented him even from performing his ordinary pursuits as there is not an iota of evidence to substantiate the same. I am afraid, in view of there being no evidence how the findings, merely in view of the injuries were on the head and bleeding, the opinion that the same was sufficient to endanger the human life, could have been formed, particularly when the complainant has himself stated that he was discharged from the hospital on the 4th day. Nothing, however, has come in his statement that due to the injuries on his person, he was prevented from performing even his ordinary pursuits for a period of 20 days. The facts, no doubt, remain that there were injuries on the person of complainant, however, grievous or not in nature in terms of the provisions contained under Section 320 of Indian Penal Code or who has caused the same, there hardly remains any legal and acceptable evidence available on record to substantiate the finding of conviction under Section 326, IPC recorded against the accused by both Courts below. 23. 23. In the light of what has been stated hereinabove, the present is a case of misconstruing and misreading the evidence available on record, which has resulted in recording wrong findings. The improvements and contradictions in the prosecution case noticed supra vitiate the trial of the accused. The judgment whereby he has been convicted and sentenced is definitely perverse and not legally sustainable. 24. In view of the foregoing reasons, this petition succeeds and the same is allowed. The impugned judgment is set aside. Personal bond furnished by the accused/respondent is cancelled and surety bond discharged. The amount of fine, if deposited, be refunded to the petitioner/accused.