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2016 DIGILAW 1705 (HP)

State of Himachal Pradesh v. Kishori Lal

2016-08-17

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Ajay Mohan Goel, J. By way of the present appeal, State has challenged judgment passed by the Court of learned Sessions Judge, Mandi, in Criminal Appeal No. 10/2007 dated 25.02.2011, vide which, learned Appellate Court has partly allowed the appeal filed by the accused and acquitted him for commission of offence punishable under Section 326 I.P.C., though it has maintained conviction of the accused under Section 323 I.P.C. as adjudicated by the Court of learned Additional Chief Judicial Magistrate vide its judgment dated 02.02.2007 in Police Challan No. 240-II/2001 dated 02.02.2007. 2. The case of the prosecution was that on 24.09.2001 at around 9.15 A.M. complainant Karam Chand was present at village Maghiath where he was working as Mason in the construction work of link road known as Bari to Dhanalag Road. Complaint found accused Koshori Lal extracting stones and he asked the accused not to do so, however, the accused did not heed to the request of the complainant. After Kishori Lal went to his house, complainant followed him to take the tools which were kept in the shop of the accused. When the complainant reached the shop of accused, the accused gave a blow of the handle of Ghan (hammer) to the complainant on his right arm, as a result of which, the complainant was injured. Thereafter, accused No.2 Piar Chand came there and he also hit the complainant with the handle of Ghan. Bachiter Singh, who heard the cries of his brother i.e. the complainant, also reached the spot. When he tried to rescue the complainant from the clutches of the accused, accused Kishori Lal hit Bachiter Singh also with chisel, as a result of which, Bachiter Singh suffered grievous injuries. Accused No. 2 also hit Bachiter Singh with the handle of Ghan. Prem Singh who also was the brother of the complainant also came there and he was also beaten up by the accused persons. The complainant and his brothers were rescued by Ram Singh, Jeevan Lal and Rattan Singh from the clutches of the accused. Accused threatened the complainant and his brother to do away with their lives. The matter was accordingly, reported to the police and an FIR was registered in this regard. 3. The complainant and his brothers were rescued by Ram Singh, Jeevan Lal and Rattan Singh from the clutches of the accused. Accused threatened the complainant and his brother to do away with their lives. The matter was accordingly, reported to the police and an FIR was registered in this regard. 3. After completion of the investigation, challan was filed in the Court and as a prima facie case was found against the accused persons, they were charged for commission of offences punishable under Sections 323, 326 and 506(ii) I.P.C. read with Section 34 I.P.C., to which they pleaded not guilty and claimed trial. 4. On the basis of material produced on record by the prosecution, learned trial Court held that the prosecution was successful in proving its case against accused Kishori Lal and accordingly, the said accused was convicted for commission of offences punishable under Sections 323 and 306 I.P.C. Accused No. 2 was acquitted. Learned trial Court imposed sentence of six months simple imprisonment on accused Kishori Lal for commission of offence punishable under Section 323 I.P.C. and simple imprisonment for one year with fine of Rs.2000/- for the commission of offence punishable under Section 326 I.P.C. and in default of payment of fine to undergo simple imprisonment for three months. The sentences imposed were to run concurrently. 5. Feeling aggrieved by the said judgment passed by learned trial Court, accused Kishori Lal filed an appeal. Learned Appellate Court vide its judgment dated 02.02.2007 partially allowed the said appeal and acquitted the accused for offence under Section 326 I.P.C., though it maintained conviction of the accused under Section 323 I.P.C. 6. Mr. V.S. Chauhan, learned Additional Advocate General, argued that the judgment passed by learned Appellate Court whereby it acquitted the accused for commission of offence punishable under Section 326 I.P.C., is perverse and not sustainable in the eyes of law. Mr. Chauhan argued that learned trial Court had rightly convicted accused No. 1 for commission of offences both under Sections 326 and 323 I.P.C. and learned Appellate Court was not justified in interfering with the findings of guilt recorded by learned trial Court against the accused for offence under Section 323 I.P.C. According to Mr. Mr. Chauhan argued that learned trial Court had rightly convicted accused No. 1 for commission of offences both under Sections 326 and 323 I.P.C. and learned Appellate Court was not justified in interfering with the findings of guilt recorded by learned trial Court against the accused for offence under Section 323 I.P.C. According to Mr. Chauhan, it stood proved on record beyond reasonable doubt as was held by learned trial Court that the accused had committed offence punishable under Section 326 I.P.C. He further argued that the findings of acquittal returned by learned Appellate Court were not substantiated from the records of the case and accordingly, the present appeal be allowed and the acquittal recorded by learned Appellate Court under Section 326 I.P.C. be set aside. 7. On the other hand, Mr. J.L. Bhardwaj, learned counsel for the respondent, argued that there was no merit in the present appeal and learned Appellate Court had rightly set aside the conviction of the accused under Section 326 I.P.C. because the prosecution had miserably failed to prove beyond reasonable doubt that the accused had committed offence punishable under Section 326 I.P.C. Mr. Bhardwaj argued that learned trial Court had erred in convicting the accused for commission of offence under Section 326 I.P.C. and this error committed by learned trial Court had been correctly rectified by learned Appellate Court. Accordingly, he submitted that there was no merit in the present appeal and the same be dismissed. 8. We have heard learned counsel for the parties and also gone through the records of the case. 9. Ext. PW6/B is the copy of MLC. The injuries suffered by Bachiter Singh as mentioned in the said MLC are as under:- “1. A lacerated wound on the scalp in the mid of the scalp. It is 1.5cm x 0.5cm in length it is about 8 cm above the Lt. medial eyebrow. It is having fresh blood in the area. 2. An abrasion on the Lt. side of cheek and a pointed edge injury on the Lt. mandible It is 0.5cm x 0.5cm. Pt. says he is not able to move the mandible. Referred to Dental Surgeon for expert opinion. 3. An abrasion on the right dorsal aspect of hand. It is 0.5cm and about 1cm from the wrist towards the finger.” 10. This MLC has been prepared by Dr. Sangita Dhillon, who entered the witness box as PW-6. Pt. says he is not able to move the mandible. Referred to Dental Surgeon for expert opinion. 3. An abrasion on the right dorsal aspect of hand. It is 0.5cm and about 1cm from the wrist towards the finger.” 10. This MLC has been prepared by Dr. Sangita Dhillon, who entered the witness box as PW-6. This witness has stated that all the injuries which were found on the person of Bachiter Singh were simple injuries caused with a blunt weapon except Injury No.2 which was grievous and it was caused by a pointed weapon. Injury No. 2 as per MLC is an abrasion on the left side of the cheek and a pointed edge injury on the left mandible. This victim was also referred to Dental Surgeon for expert opinion. Incidentally, a perusal of MLC Ext. PW6/B will demonstrate that the Doctor had not given any opinion with regard to Injury No. 2 suffered by Bachiter Singh on the said MLC and the opinion was reserved as the said witness was deferred to Dental Surgeon for expert opinion. There is no opinion on record produced by the prosecution of any Dental Surgeon. In this view of the matter, it cannot be said that the prosecution had proved beyond reasonable doubt that Injury No. 2 mentioned in the MLC which was suffered by Bachiter Singh was either grievous injury or the same was inflicted by the accused. 11. A perusal of the judgment passed by learned Appellate Court demonstrates that learned Appellate Court has referred to the MLC of Bachiter Singh as well as the testimony of PW-6 and thereafter, learned Appellate Court has held that on the basis of testimony of PW-6 and what is recorded in the MLC, it could not be said that the prosecution had proved beyond reasonable doubt that the accused was guilty of commission of offence punishable under Section 326 I.P.C. 12. Learned Appellate Court further held that had this injury been caused by sickle which was a pointed object then injury on the skin should have been much deeper. It also held that if the injury was not caused by sickle as was the case putforth by the prosecution then it remained doubtful that as to how this injury was caused upon Bachiter Singh. It also held that if the injury was not caused by sickle as was the case putforth by the prosecution then it remained doubtful that as to how this injury was caused upon Bachiter Singh. Accordingly, learned Appellate Court held that the prosecution had failed to prove that the said injury was caused by the accused and on these basis, learned Appellate Court set aside the conviction of the accused under Section 326 I.P.C. 13. In view of what we have discussed above, the findings so returned by learned Appellate Court is the correct finding. Learned trial Court had failed to appreciate this very important aspect of the matter that it was no where stated in the MLC that Injury No. 2 suffered by Bachiter Singh was a grievous injury and the prosecution had not placed on record any opinion of Dental Surgeon to this effect. Accordingly, we uphold the findings of acquittal so returned by learned Appellate Court and dismiss the present appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.