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2013 DIGILAW 290 (HP)

TILAK RAJ v. STATE OF HIMACHAL PRADESH

2013-04-09

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. - 1. THIS is a revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 by the accused, assailing the judgment dated 20.12.2006, passed by the Sub Divisional Judicial Magistrate, Dalhousie, District Chamba, H.P., in Criminal Case No.113-II of 1998, titled as State Vs. versus Tilak Raj, wherein accused stands convicted for having committed offences punishable under the provisions of Sections 323 and 452 of the Indian Penal Code, 1860, as affirmed by learned Sessions Judge, Chamba vide judgment dated 23.4.2007, in Criminal Appeal No.1 of 2007, titled as Tilak Raj Vs. State of Himachal Pradesh. 2. HAVING heard learned counsel for the parties as also perused the record, I am of the considered view that petitioner has made out a case for interference as findings with regard to conviction cannot be said to be sustainable in law, being perverse resulting into miscarriage of justice. In short, facts are as that Accused/ petitioner (Shri Tilak Raj) is closely related to the complainant, Shri Sushil Kumar (PW-1). In fact, they are neighbours and residing in the same locality having houses adjoining to each other. On 12th December, 1997, complainant lodged an F.I.R. No.108 of 1997 dated 12.12.1997 (Ex.PW4/A), under the provisions of Sections 452, 566, 323 of the Indian Penal Code at Police Post Sihunta, Police Station, Chowari, District Chamba to the effect that accused had trespassed into their compound and lopped branches of his tree. When complainant objected to the same, accused got infuriated and gave him a blow with a Darat on his head. Smt. Bimla Devi (PW-5), Smt. Salochna Devi (not examined), Smt. Laxmi Devi (not examined) and Shri Jagdish Chand (PW-6) intervened and snatched the Darat. Thereafter, accused picked up a Danda lying nearby and gave a blow with the same to Shri Rattan Chand (PW-2), who is father of PW-1. Amongst others, the incident was witnessed by Shri Jagdish Chand (PW-6). The matter was investigated by Constable Suresh Kumar (PW-9), who took the injured to the hospital and got them medically examined at Primary Health Centre, Sihunta from Dr. J.S. Pathania (PW-8). M.L.Cs. (Ex.PW8/A and Ex.PW8/B) were prepared. Both PW-1 and PW-2 sustained simple injuries on different parts of their bodies. 3. THE matter was investigated by the police and challan presented in the Court for trial. 4. J.S. Pathania (PW-8). M.L.Cs. (Ex.PW8/A and Ex.PW8/B) were prepared. Both PW-1 and PW-2 sustained simple injuries on different parts of their bodies. 3. THE matter was investigated by the police and challan presented in the Court for trial. 4. THE accused was charged for having committed offences punishable under the provisions of Sections 323, 452 and 506 of the Indian Penal Code, 1860, to which he pleaded not guilty and claimed trial. In order to establish its case, beyond reasonable doubt, in all prosecution examined as many as nine witnesses. Statement of accused under Section 313 Cr.P.C. was also recorded, in which he took up a defence that it was the complainant who had in fact lopped the tree and when he inquired about the same, a false case was registered. 5. APPRECIATING the testimonies of the relevant witnesses, the trial Court in terms of its judgment dated 20.12.2006/21.12.2006 held the accused guilty of having committed the offences punishable only under Sections 323 and 452 of the Indian Penal Code. However, with regard to offence punishable under Section 506 of the Indian Penal Code, accused stands acquitted. Resultantly, the accused was sentenced to undergo simple imprisonment for a period of three months for offence punishable under Section 323 of the Indian Penal Code and simple imprisonment for a period of six months for the offence punishable under Section 452 of the Indian Penal Code. Additionally, he was directed to pay fine of Rs.1,000/- and in default thereof, further undergo simple imprisonment for a period of one month. 6. THE accused preferred an appeal and in terms of impugned judgment dated 23.4.2007, Sessions Judge, Chamba upheld the judgment of conviction and sentence. The fact that there is prior animosity and litigation pending between the complainant-party and family of the accused cannot be disputed. In fact, it stands admitted by the material prosecution witnesses who are close family members of the complainant-party. Statements of PW-1, PW-2, PW-3 and PW-5 are relevant in that context. 7. ANIMOSITY is a double edged sword. It can cut both ways. 8. SIGNIFICANTLY, accused has admitted his presence on the spot at the relevant time. This is not only evident from his line of cross-examination but also from his statement recorded under Section 313 of the Code of Criminal Procedure. 7. ANIMOSITY is a double edged sword. It can cut both ways. 8. SIGNIFICANTLY, accused has admitted his presence on the spot at the relevant time. This is not only evident from his line of cross-examination but also from his statement recorded under Section 313 of the Code of Criminal Procedure. Now, what is to be seen is as to whether the incident, as the prosecution wants the Court to believe, actually took place at the relevant time and as to whether the accused actually gave a blow with Drat or Danda to the complainant-party or not. This fact has to be ascertained, beyond reasonable doubt, both from the oral testimonies as also documentary evidence which the prosecution has placed on record. 9. AT this juncture, it may only be noticed that in the medical report, placed on record by the prosecution with respect to both PW-1 and PW-2, there are over writings which are not signed/ initialed by any person. The document itself does not inspire confidence. 10. NOTICEABLY, in the MLC (Ex. PW-8/A) of injured (Sushil Kumar), there is an over writing. It appears that time of examination, which took place on 12.12.1997 has been scored off to read "8:30 pm". The cutting has not been signed by any person. Even on the original place where word "8" was written, there is an over writing. This also is not initialed by any person. In the very same document, at the place where the date and time of sending the report to the Police is recorded, there is an over writing. Word "2" has been over written to read as "3", so as to make it appear that the document was sent to the Police on 13.12.1997. Assuming that such cutting and over-writing has no significant relevance, even otherwise this document falsifies the prosecution case. Most significantly, in Column No.2, where the Doctor is supposed to give his opinion about the probable duration of injury, it is recorded as "12 to 24 hours". It is noticed that the aforesaid changes have also been effected in the document (Ex.PW8/B), which is the M.L.C. pertaining to Shri Rattan Chand (PW-2). Even here, in the Column where the Doctor is supposed to give his opinion about the probable duration of injury, it is written "12 to 24 Hrs." 11. It is noticed that the aforesaid changes have also been effected in the document (Ex.PW8/B), which is the M.L.C. pertaining to Shri Rattan Chand (PW-2). Even here, in the Column where the Doctor is supposed to give his opinion about the probable duration of injury, it is written "12 to 24 Hrs." 11. HENCE, reliance on these two documents by the prosecution, renders the version about the incident taking place on 12.12.1997 at 5.30 p.m. as is so recorded in the F.I.R. (Ex.PW4/A), to be extremely doubtful if not false. Either police has not correctly recorded the time and place of occurrence of the incident in the F.I.R. or cuttings and the timing in the M.L.C. have not been sufficiently explained by the prosecution. 12. THE Doctor has also deposed that at the time of examination of the patient, no blood was oozing and that the injury could have been sustained by fall. It may also be noticed that Shri Mohinder Singh who conducted the investigation has deposed that when the complainant came to the Police Station, he was not having any wounds on his body. He only states that blood was oozing but does not know from where. He also did not take into possession clothes of the complainant. The injury and its timing have not been sufficiently explained. Even if the version so narrated by the complainant in the F.I.R. is to be believed then it cannot be said that accused had inflicted the injuries with the Darat and Danda on 12.12.1997 at 5:30 pm. As 12 hours prior to 8.30 p.m. would not by 5.30 p.m. of the same date, this renders the prosecution case to be extremely doubtful, if not false. 13. HAVING dealt with the documentary evidence, I shall now proceed to deal with the statements of the prosecution witnesses. I am of the considered view that even here there are material contradictions in the statements of the witnesses who allegedly were present on the spot. 14. AS per the testimony of Shri Sushil Kumar (PW-1), when he saw the accused cutting Ghaman tree, he objected but accused started abusing. Thereafter with the back portion of the Darat, accused gave him a blow on the head. Hearing cries, his wife and father came when accused also gave a blow with a Danda to his father. He states that the fight continued for almost an hour. Thereafter with the back portion of the Darat, accused gave him a blow on the head. Hearing cries, his wife and father came when accused also gave a blow with a Danda to his father. He states that the fight continued for almost an hour. He further states that Darat was handed over by the accused to the police during investigation. He does not know as to whether Danda was taken into possession by the police or not. Now significantly this version of his stands belied by his father (Shri Rattan Chand) who in no uncertain terms has deposed that it was he who had handed over the Darat to the police. Not only that, PW-2 also states that he had handed over the Danda to the police. Significantly, Danda has not seen the light of the day. Now why is it that prosecution has not produced the same in Court. This fact has not been explained. 15. PW -3 (Smt. Sumna Devi) is the wife of Shri Sushil Kumar (PW-1). Her testimony, to say the least is uninspiring in confidence. To begin with, she does not remember the name of her neighbours though she states that there are 5-6 houses in the neighbourhood. Obviously, she does not want to disclose correct facts to her knowledge. Also, this witness has been tutored. She admits it to be correct that she is making such statement as she was made to understand. It appears that she did not witness the occurrence of the incident at all. This can be said from the fact that she admits that at the time when her father-in-law was beaten up she was inside. Now if she was inside, how she can say that her husband and father-in-law were given beatings. It is not her case that she was told by someone else or that she saw it from inside the house. 16. PW -5 (Smt. Bimla Devi) is relative of both the accused as also the complainant. She is the aunt (Chachi). In Court, she deposed that accused gave 4-5 blows with a Danda to PW-2 which version stands contradicted both by PW-2 and PW-1, who in no uncertain terms have deposed that only one blow was given with a Danda. She may have exaggerated but then her conduct is quite unnatural. She is the aunt (Chachi). In Court, she deposed that accused gave 4-5 blows with a Danda to PW-2 which version stands contradicted both by PW-2 and PW-1, who in no uncertain terms have deposed that only one blow was given with a Danda. She may have exaggerated but then her conduct is quite unnatural. She states that she tried to intervene and release both the accused and the complainant from each other but when the accused did not release the complainant, she left for her house. Now, why would a relative not call for help from the neighbourhood or from her house. She has not explained, as to what she did after reaching her house. She is a close relative of the accused and the complainant. Having seen the accused giving blow with a Danda to the complainant-party, the least she could have done was to call for help from the neighbourhood. To further support their case, prosecution has referred to and relied upon the testimony of Shri Jagdish Chand (PW-8). Even, his version, I find contradicts the prosecution story as also versions of other prosecution witnesses. He states that when accused gave blow with a Darat to PW-1, his wife came and separated them. When she took the complainant inside the house and bolted him indoors and thereafter "accused gave two Danda blows to PW-2" and pushed Rattan Chand by holding his neck. Now if PW-1 was bolted inside the house, then how could he see the accused give blow of a Danda to his father Shri Rattan Chand. Further, according to Shri Rattan Chand (PW-2) only one blow of a Danda was given to him, whereas according to Shri Jagdish Chand (PW-8), two blows were given. Further, this witness states that accused caught PW-2 from the neck also, as a result of which injuries were sustained, which is not the version of any one of the witnesses or the prosecution story. He does not appear to be a witness present at the spot. 17. THIS witness further states that even though fight continued for over one hour, none from the neighbourhood came at the spot which version stands belied from the testimony of not only PW-5 but also PW-1, according to whom, people from the neighbourhood has gathered on the spot. 18. 17. THIS witness further states that even though fight continued for over one hour, none from the neighbourhood came at the spot which version stands belied from the testimony of not only PW-5 but also PW-1, according to whom, people from the neighbourhood has gathered on the spot. 18. ALSO, Rattan Chand does not state that it was Tilak Raj who produced the Drat to the police which version of his stands belied by Rattan Chand himself, according to whom, it was he who had handed over the Drat to the Police. I find that petitioner has made out a case for interference. It cannot be said that the Courts below correctly and completely appreciated the documentary and oral evidence. Testimonies of the witnesses have been misconstrued and not correctly appreciated which has resulted into return of incorrect and perverse findings of fact leading to travesty of justice, rendering the judgment to be perverse, essentially warranting interference by this Court. Prosecution cannot be said to have proved its case, beyond reasonable doubt, by leading clear, cogent, reliable and convincing piece of evidence. 19. HENCE, for all the aforesaid reasons, the present petition is allowed. The judgment of conviction and sentence passed by Sub Divisional Judicial Magistrate, Dalhousie, District Chamba, H.P., in Criminal Case No.113-II of 1998, titled as State Vs. versus Tilak Raj, as affirmed by learned Sessions Judge, Chamba vide judgment dated 23.4.2007, in Criminal Appeal No.1 of 2007, is set aside and the accused is acquitted of the charged offences. The bail bonds furnished by the accused are discharged. The fine amount, if any, deposited by the petitioner be refunded to him. Petition stands disposed of, so also the pending application, if any.