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Himachal Pradesh High Court · body

2016 DIGILAW 17 (HP)

Kailash Chand v. State of H. P.

2016-01-01

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : SURESHWAR THAKUR, J. 1. The petitioner herein along with his cousin Balbir Singh stand alleged to be illegally detained in Police Station, Ghumarwin from the night of 25.10.2015 uptill 26.10.2015. Balbir Singh, the cousin of the petitioner was detected by respondents No. 4 to 6 to be in possession of a cell phone purportedly stolen from a shop owned by one Randeep Kumar located at Ghumarwin. When on 24.10.2015, both Balbir Singh and the petitioner were at Suni the former received a call on his mobile from Police Station, Ghumarwin, apprising him of the factum of his holding possessin of a mobile purportedly stolen from the premises of Randeep Kumar besides warranting hence his presence at Police Station, Ghumarwin for proceeding whereto a request was made upon Balbir Singh. However, the petitioner also accompanied Balbir Singh to Police Station, Ghumarwin. Both reached Police Station, Ghumarwin on 25.10.2015 at around 9/10 O'clock. The petitioner is alleged to be during his illegal confinement therein from the night of 25.10.2015 uptill 26.10.2015 mercilessly beaten by respondents No.4 to 6. The petitioner on 26.10.2015 as divulged by prescription slip comprised in Annexure P-1 was advised intake of medicines recited therein for treatment of sprain. Under Annexure P-2, the petitioner made a complaint to the Director General of Police, Himachal Pradesh ventilating therein his grievance of his when he stood illegally detained from the night of 25.10.2015 to 26.10.2015 in Police Station, Ghumarwin his therein standing belaboured by respondents No.4 to 6. Under Annexure-D, appended to the reply furnished by respondents No.1 to 3, the Director General of Police, Himachal Pradesh, Shimla on his receiving the complaint of the petitioner comprised in Annexure P-2 forwarded it to respondent No.3 for appropriate action. The petitioner was medically examined at Civil Hopsital, Ghumarwin and as portrayed/unraveled by Annexure-E, appended to the reply furnished by respondents No.1 to 3, the petitioner stood opined therein to not have suffered any fracture or dislocation. However, the petitioner on visiting IGMC, Shimla on 31.10.2014 whereupon he stood examined by the doctor concerned was opined to have suffered a fracture of leg. On the doctor at IGMC, Shimla, who attended upon the petitioner on his visiting it on 31.10.2015 having opined under annexure P-3, of his having suffered fracture of leg led him to obtain treatment thereat inclusive of application of plaster on broken bone. 2. On the doctor at IGMC, Shimla, who attended upon the petitioner on his visiting it on 31.10.2015 having opined under annexure P-3, of his having suffered fracture of leg led him to obtain treatment thereat inclusive of application of plaster on broken bone. 2. On the aforesaid factual matrix, the petitioner attributes to respondents No.4 to 6 the tortious act of theirs mercilessly belabouring him during his illegal detention from the night of 25.10.2015 to 26.10.2015 at Police Station, Ghumarwin sequeling fracture of bone of leg hence he claims compensation from them. However, there is a disclosure in Annexures-B, C and D appended to the reply furnished by respondents No.1 to 3 to the writ petition, especially in the statement of Balbir Singh alleged to be holding possession of a purportedly stolen cell phone from the premises of Randeep Kumar and who stood accompanied by the petitioner to Police Station, Ghumarwin of no beatings standing delivered on the person of the petitioner besides it unfolds the factum of his not standing illegally confined from the night 25.10.2015 till 26.10.2015 at Police Station, Ghumarwin. Moreover, when Annexure–E comprising the MLC prepared on 28.10.2015 by the Medical Officer of Civil Hospital, Ghumarwin records an opinion of the petitioner not suffering any fracture or dislocation does prima facie countervail the grievance of the petitioner of the fracture detected to be suffered by him by the doctor attending upon him at IGMC, Shimla on 31.10.2015 bearing any causal connection with the purported belabourings perpetrated upon his person during his alleged illegal confinement from the night of 25.10.2015 till 26.10.2015 at Police Station, Ghumarwin. With the preparation or scribing of Annexure-E, being prior to the visit of the petitioner to IGMC, Shimla on 31.10.2015, the omission of a revelation in Annexure-E of the petitioner suffering any fracture or dislocation also cannot when prepared in quick immediacy to his purported illegal confinement whereat he stood allegedly mercilessly beaten by respondents No.4 to 6, prima facie sequel any inference of the fracture or dislocation of his bone as stood subsequently detected at IGMC, Shimla on 31.10.2015 being relatable to any belabourings standing purportedly perpetrated upon his person by respondents No.4 to 6 during his illegal confinement w.e.f. 25.10.2015 to 26.10.2015 at Police Station Ghumarwin. 3. 3. On 18th December, 2015 this Court had directed the Medical Superintendent, Deen Dayal Upadhyay Hospital, Shimla to examine the petitioner afresh and to also conduct his x-ray for establishing whether the petitioner has suffered any fracture or not on 25.10.2015. In compliance thereto, the apposite opinion has been placed on record by the Senior Medical Superintendent, DDU (Zonal) Hospital, Shimla, the relevant portion whereof stands reproduced hereinafter:- “The petitioner is old healed fracture of the head of 5th Metatarsal. Metatarsophalangeal Joint Appear Normal. No abnormal collection noted. Rest of the bones are unremarkable.” 4. The Senior Medical Superintendent, DDU (Zonal) Hospital, Shimla has not categorically unraveled therein the factum of the fracture of the head of 5th Metatarsal as detected by him to stand suffered by the petitioner being relatable to 25.10.2015 or 26.10.2015, whereto it purportedly stood begotten by the petitioner during his alleged unlawful detention/confinement at Police Station, Ghumarwin in sequel to his purportedly standing belaboured thereat by respondents No.4 to 6. Dehors the above when the espousal by the petitioner of his standing detected on 31.10.2015 at IGMC, Shimla to suffer fracture of leg stands fragrantly contradicted by the opinion of the Senior Medical Superintendent, DDU (Zonal) Hospital, Shimla inasmuch as the latter on 18.12.2015 on examining the petitioner detected his suffering an old healed fracture of the head of 5th Metatarsal necessarily ingrains it with a vice of falsity. Moreover, this Court is faced with Annexure-E unfolding the factum of the petitioner on standing examined by the Medical Officer at Civil Hospital, Ghumarwin on 28.10.2015 not thereat standing detected to suffer any fracture or dislocation vis-a-vis the report of the Senior Medical Superintendent, DDU (Zonal) Hospital, Shimla though carrying a reflection therein of the petitioner herein suffering an old healed fracture yet it being reticent qua the time of its occurrence on the person of the petitioner precludes this Court to categorically determine with firmness qua its carrying any causal connection with the alleged tortious act of respondents No.4 to 6 belabouring the petitioner from the night of 25.10.2015 to 26.10.015 during his unlawful confinement at Police Station, Ghumarwin. With the obstacle aforesaid besetting this Court in relating the fracture suffered by the petitioner detected on 31.10.2015 at IGMC, Shimla by the doctor attending upon him to his standing belaboured by respondents No.4 to 6 during his purported unlawful confinement from the night of 25.10.2015 to 26.10.2015 at Police Station Ghumarwin rather with Annexure-E scribed in quick spontaneity to the commission of the alleged tort of assault and battery upon him by respondents No.4 to 6 during his purported illegal confinement from 25.10.2015 to 26.10.2015 at Police Station, Ghumarwin subjugating any inference of any fracture detected on 31.10.2015 at IGMC Shimla standing suffered thereat by the petitioner does also vigorously prima facie dispel the factum of its commission by respondents No.4 to 6. In aftermath with lack of connectivity or relatibility inter se the fracture of leg suffered by the petitioner and its standing detected on 31.10.2015 at IGMC, Shimla by the doctor attending upon him with the purported tort of assault and battery purportedly committed upon him by respondents No.4 to 6 during his illegal confinement from 25.10.2015 to 26.10.2015 at Police Station, Ghumarwin obviously also erodes any espousal for compensation by the petitioner for its commission on his person by respondents No.4 to 6. Moreover, with contradictions to the extent referred to hereinabove intra se the opinion of the Senior Medical Superintendent, DDU (Zonal Hospital), Shimla visa- vis the opinion of the doctor attending upon the petitioner on 31.10.2015 at IGMC, Shimla prima facie benumbs the efficacy of the propagation by the petitioner of any fracture of his leg standing detected at IGMC, Shimla on 31.10.2015 besides prima facie renders it to be bereft of any credence. 5. The learned counsel appearing for the petitioner contends qua Annexure-E being concocted. He also contends qua the statements of Balbir Singh and Chuni Lal comprised in Annexure-B and Annexure-C supporting the stand canvassed by the respondents in their reply too being ridden with falsity and of theirs being unamenable for any reliance being placed thereupon. The contest qua the authenticity or otherwise of Annexure-E or qua any falsity ingraining the statements of Chuni Lal and Balbir Singh who therein support the stand as espoused by the respondents in their reply cannot come to be tested by this Court in this writ petition. The contest qua the authenticity or otherwise of Annexure-E or qua any falsity ingraining the statements of Chuni Lal and Balbir Singh who therein support the stand as espoused by the respondents in their reply cannot come to be tested by this Court in this writ petition. The contests espoused qua the aforesaid by the learned counsels arouse complex disputed questions of fact warranting receipt of conclusive evidence thereon. Adduction of firm and conclusive evidence thereon by the petitioner on his instituting a civil suit for damages or compensation arising from the purported commission of tort of assault and battery on his person by respondents No.4 to 6 during his alleged illegal confinement from 25.10.2015 to 26.10.2015 at Police Station, Ghumarwin, is a sine qua non for the petitioner succeeding in his claim for damages or compensation anvilled upon the alleged commission of tort of assault and battery upon his person by respondents No.4 to 6. In sequitur , the engendering of disputed questions of fact in this writ petition as stand germinated from the aforesaid complicated complex questions of fact impinging upon the authenticity or otherwise of Annexure-E and upon the statements of Chuni Lal and Balbir Singh respectively comprised in Annexure-B and Annexure-C, wherein the role, if any, of respondents No.4 to 6 in allegedly perpetrating belabourings upon the petitioner during his purported illegal confinement from the night of 25.10.2015 till 26.10.2015 at Police Station, Ghumarwin, stands absolved, cannot in a short shrift manner merely on exchange of affidavits in support of the claim of the petitioner and in opposition thereto by the respondents stand adjudicated upon by the Writ Court as then it would tantamount to accepting the version spelt out in the respective affidavits of the contestants before this Court even when neither the Medical Officer, who prepared Annexure-E nor Balbir Singh and Chuni Lal have withstood the rigor of cross-examination for eliciting in course thereof the truth of portrayals therein. For unearthing the truth or otherwise of the recitals in Annexure-E and of portrayals in Annexures B and C the crossexamination of their respective authors is imperative which however cannot be held in proceedings before a Writ Court rather when their respective examinations-in-chief besides their cross-examinations for testing the vigour and veracity of portrayals in Annexures B to E, can obviously stand carried out only during the course of the trial of an apposite suit instituted by the petitioner herein before the Civil Court of competent jurisdiction claiming therein damages arising from the alleged commission of tort of assault and battery upon him by respondents No.4 to 6 during his alleged illegal confinement at Police Station, Ghumarwin, concomitantly constrains this Court to merely on affidavits of contestants before this Court existing on record hence not dwell upon the authenticity or otherwise of their rival assertions or qua the authenticity or otherwise of Annexure-E or the statements of Chuni Lal and Balbir Singh comprised in Annexures B and C. Also this Court deems it fit and proper to not grant the reliefs to the petitioner as prayed for by him in the instant writ petition. Contrarily this Court deems it fit and appropriate to reserve a right in favour of the petitioner to institute a suit for damages/compensation before the Civil Court of competent jurisdiction arising from the commission of tort of assault and battery upon his person by respondents No.4 to 6 during his alleged illegal confinement at Police Station, Ghumarwin, Bilaspur. Any observation made herein-above shall not influence the Civil Court of competent jurisdiction when seized of the apposite civil suit instituted before it by the petitioner herein. Writ petition stand disposed of, so also, the pending applications.