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2016 DIGILAW 2144 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2016-10-03

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Since all these appeals arise out of the very same impugned judgment, they are being considered and disposed of as such. 2. Accused Sanjeev Kumar, Raj Kumar and Vinod Kumar were charged to face trial for having committed offences punishable under Section 307, 506, both read with Section 34 of the Indian Penal Code, and Section 3(2) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, hereinafter referred to as the Atrocities Act. 3. In terms of the impugned judgment dated 26.11.2009, passed by Sessions Judge (Special Judge), Una, Himachal Pradesh, in SC/ST Case No.1 of 2008, titled as State of Himachal Pradesh v. Sanjeev Kumar and others, all the accused stand acquitted for having committed offence, punishable under Section 506, read with Section 34 of the Indian Penal Code, as also Section 3(2) of the Atrocities Act. However, only accused Sanjeev Kumar stands convicted for having committed offence punishable under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and pay fine of Rs.5,000/-, and in default thereof to further undergo simple imprisonment for a period of six months. The other accused stand acquitted of the said charge. 4. The said judgment is the subject matter of challenge in these appeals, so filed by accused Sanjeev Kumar (Cr.A No.441 of 2009) against his conviction and the State, one for enhancement of sentence against accused Sanjeev Kumar (Cr.A No.43 of 2010) and the second (Cr.A No.321 of 2010) against acquittal. 5. Through the testimonies of Hitesh Kumar (PW-1), Umesh Kumar (PW-2) and Suresh Kumar (PW-7), prosecution wants the Court to believe that on 8.10.2006, accused persons in furtherance of their common intention inflicted blow with a knife on the person of Suresh Kumar and such act was committed with an intent of causing injury, which could have caused death, and also criminally intimidated him, apart from calling him names to be a person falling within the provisions of the Atrocities Act. 6. Also, in police custody, accused Sanjeev Kumar made a disclosure statement (Ex.PW-3/B), which led to the recovery of the weapon of offence (Ex.P-3) in the presence of Bansi Lal (PW-3). 7. 6. Also, in police custody, accused Sanjeev Kumar made a disclosure statement (Ex.PW-3/B), which led to the recovery of the weapon of offence (Ex.P-3) in the presence of Bansi Lal (PW-3). 7. No specific defence, save and except of false implication, stands taken by the accused, in his statement under Section 313 of the Code of Criminal Procedure, but as is evident from the line of cross-examination and so admitted by the prosecution witnesses that the complainant party is closely related to police officials, who have been serving in the very same District. 8. At the threshold, it be only observed that from the careful perusal of testimony of Hitesh Kumar, Umesh Kumar and Suresh Kumar, it cannot be, even remotely, inferred that the accused committed any offence under the provisions of the Atrocities Act. There is not even a whisper to establish the same against any one of the accused persons. As such, acquittal by the Court below in relation of the offence under the provisions of the Atrocities Act, is totally sustainable in law. 9. Insofar as the appeal filed by the State against the judgment of acquittal of co-accused Raj Kumar and Vinod Kumar is concerned, we are of the considered view that no interference is warranted, and this we say so for the reason that from the bare reading of the testimonies of Hitesh Kumar, Umesh Kumar and Suresh Kumar, who no doubt in their examination-in-chief state that the other accused also dragged injured Suresh Kumar upto a distance of 10-12 feet and gave fist blows to him and while fleeing away all three of them extended threats of eliminating the victim at an opportune moment, but however, in the cross-examination part of their testimonies, they admit such fact not to have been recorded in their previous statements, so exhibited in Court, with which they were confronted. 10. Specifically, we find major improvement, exaggeration and embellishment in the statement of victim (PW-7) to the effect that at the time when accused Sanjeev Kumar inflicted blow with a knife, accused Raj Kumar and Vinod Kumar facilitated such act by holding him by the arm. Hitesh Kumar and Umesh Kumar have nowhere corroborated such version. As such, there is no credible evidence against accused Raj Kumar and Vinod Kumar in the commission of crime. 11. Hitesh Kumar and Umesh Kumar have nowhere corroborated such version. As such, there is no credible evidence against accused Raj Kumar and Vinod Kumar in the commission of crime. 11. We now proceed to decide the issue of conviction of accused Sanjeev Kumar, in relation to offence under the provisions of Section 307 of the Indian Penal Code. 12. At the threshold, it be only observed that the motive of crime remains un-established on record. Accused Sanjeev Kumar, from the line of cross-examination, wants the Court to believe that even though he was present on the spot, the victim, who was under the influence of liquor, created ruckus in the presence of several persons present on the spot and in the milieu, victim fell on the ground and sustained injuries with a sharp edged object. 13. Impliedly, it is also suggested that since the family members of the victim were in police force, they deliberately interfered with the investigation leading to the genesis of the crime. 14. Incident took place on 8.10.2006 at about 12.15 a.m. Police reached the spot and the victim was promptly got medically examined, which as per the version of Dr. A.K. Sharma (PW-8) was at 12.50 a.m. Now the doctor did not find the victim to be under the influence of liquor nor is there any evidence even remotely suggesting such fact. The accused never protested against false implication. In fact, testimony of the doctor suggests that same day, at about 1.35 p.m., even this accused was got medically examined from him, when also he (accused) did not reveal anything to him. After all, the doctor was a neutral and independent person. Hence, the defence cannot be said to have been probablized. 15. With these facts, we now proceed to discuss the evidence on record. 16. Suresh Kumar categorically states that on the day of the incident, he had gone to attend a religious function in the temple (Sidh Chanan) at village Kangar. While he was watching the programme, at 12.15 a.m. (night intervening 7th/8th October, 2006), accused Raj Kumar called for him. Thereafter, Raj Kumar picked up a quarrel and along with his co-accused dragged him for a distance of 10-15 feet. We find the role ascribed to accused Raj Kumar not be convincing and inspiring in confidence. While he was watching the programme, at 12.15 a.m. (night intervening 7th/8th October, 2006), accused Raj Kumar called for him. Thereafter, Raj Kumar picked up a quarrel and along with his co-accused dragged him for a distance of 10-15 feet. We find the role ascribed to accused Raj Kumar not be convincing and inspiring in confidence. But however, his further version that accused Sanjeev Kumar, who was armed with a dagger, inflicted one blow on the left side of his stomach, as a result of which he fell down, when again another blow was inflicted, from which he was able to save himself with his arm, but however, it did cause injury on his left shoulder. Cut marks on his clothes corresponded to the injuries sustained by him and also clothes were stained with blood. Clothes, i.e. vest (Ex.P-4) and T-Shirt (Ex.P-5) stand exhibited on record. Now this version stands corroborated from the unrebutted testimonies of spot witnesses Hitesh Kumar and Umesh Kumar, who, with certainty, have deposed that accused Sanjiv Kumar inflicted two blows with a knife. 17. We find that even the doctor (PW-8), who examined the victim, found the following injuries: (i) Incised wound on left iliac 3” x ½”. Omentum coming out of the wound oval. Depth could not be done omentum was coming out. Bleeding was present. The shape of injury was spindle shape. I had drawn the diagram of the injury in MLR. I had referred Suresh Kumar to R.H. Una for specialized treatment and for final opinion. (ii) Incised wound on the left shoulder/over lying over the scapular region 3” x 1.5” muscle deep. Margin sharp bleeding positive. (iii) contusion on the chin 3cm x 1 cm reddish in colour. 18. The victim had to be further referred for treatment at the Post Graduate Institute of Medical Sciences (PGI), Chandigarh, where he was examined by Dr. Rudra Prasad Doley (PW-17), who uncontovertedly has stated that the incised wound, 5cm in length, suffered in the abdomen was dangerous to life. 19. Both the doctors, who have proved medical report (Ex.PW-8/D and 17/A), are categorical that the injuries could have been sustained with knife (Ex.P-3). 20. Rudra Prasad Doley (PW-17), who uncontovertedly has stated that the incised wound, 5cm in length, suffered in the abdomen was dangerous to life. 19. Both the doctors, who have proved medical report (Ex.PW-8/D and 17/A), are categorical that the injuries could have been sustained with knife (Ex.P-3). 20. It is seen that the injury was on the vital part of the body, i.e. stomach, and the second blow was intended to cause injury on the head, which though the victim was able to prevent with the help of his arm, yet it caused injury on his shoulder. 21. We find, through the testimonies of police officials Raghubir Singh (PW-15) and Shiv Pal (PW-16), and independent witness Bansi Lal (PW-3), that the accused made a disclosure statement (Ex.PW-3/B), which led to the recovery of the weapon of offence, i.e. knife (Ex.P-3), vide Memo (Ex.PW-3/C), so concealed in bushes in village Kangar. 22. Seeking reliance upon a decision of the apex Court in Jai Narain Mishra and others v. State of Bihar, (1971) 3 SCC 762 , it is contended that at best the case would fall under Section 324 and not 307 of the Indian Penal Code. The decision came to be rendered in the given facts and circumstances, where the blows inflicted were by more than one person and some of the injuries were simple in nature. To similar effect is the decision rendered by the apex Court in Dharma Pal and others v. State of Punjab, 1993 CRI. L.J. 2856. 23. Decision in State of Uttar Pradesh v. Siyaram and another, (2010) 15 SCC 94 is of no help to the accused. 24. Decisions in Suresh Sakharam Nangare v. State of Maharashtra, (2012) 9 SCC 249 , and Chittarmal v. State of Rajasthan, (2003) 2 SCC 266 , are more on the question of common intention, which in the backdrop of the view already taken, is not relevant. 25. In our considered view, prosecution has been able to establish the guilt of the accused Sanjeev Kumar, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, not only ocular but also corroborative in the shape of recovery of weapon of offence. 26. From the material placed on record, it stands established by the prosecution witnesses that accused Sanjeev Kumar is guilty of having committed the offence charged for. 26. From the material placed on record, it stands established by the prosecution witnesses that accused Sanjeev Kumar is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of accused Sanjeev Kumar. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 27. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeals filed by accused-convict Sanjeev Kumar (Cr.A No.441/2009) against his conviction and that of the State against acquittal (Cr.A No.321/2010) are dismissed. 28. Trial Court has sentenced the accused to rigorous imprisonment for a period of two years and fine of Rs.5,000/-, and in default of payment thereof to further undergo simple imprisonment for a period of six months. This was so done by taking into account the fact that accused is about 23 years of age and has a large family to support and that it is his first offence. We find no infirmity in the same. Hence, the appeal filed by the State for enhancement of sentence (Cr.A No.43/2010) is also dismissed. All the three appeals stand disposed of, so also pending applications, if any.