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2016 DIGILAW 2408 (HP)

Krishan Lal Khimta v. State of Himachal Pradesh

2016-11-15

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner under Section 482 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C’) seeking modification of order dated 29.05.2014, passed by the learned Sessions Judge (Forest), Shimla, in Sessions Trial No. 15-S/7 of 2012/09, whereby the trial against the son of the petitioner, who was booked as an accused alongwith another co-accused, was ordered to be stayed, as he was not found to be in a fit mental condition to defend himself. The other co-accused was acquitted by the learned Sessions Judge (Forest) Shimla, through its judgment dated 19.06.2016. 2. Briefly stating the facts giving rise to the present case, as per the petitioner, are that son of the petitioner (hereinafter referred to 'Vijay Kumar’) was named as an accused in FIR No. 1 of 2008, dated 01.01.2008, registered under Sections 148, 307, 326, 324/149 of the Indian Penal Code (hereinafter referred to as 'IPC’). During the pendency of the trial, Vijay Kumar met with an accident on 09.03.2009 and remained hospitalized and was in a state of coma for a month. In order to ascertain his mental condition, the learned Sessions Judge considered the medical reports from Medical Superintendent, IGMC and Director/Medical superintendent, PGI, Chandigarh, and the learned Court below on 29.05.2014, to its satisfaction after recording the statement of the Chairman of the Medical Board, who conducted the examination of the son of the petitioner, after considering the report of the Medical Board, concluded that the son of the petitioner was not in a condition to defend himself. By medium of impugned order dated 29.05.2014, the trial against the son of the petitioner was ordered to be stayed. 3. Pursuant to the direction of the learned Court below, the petitioner herein, after an interval of every three months, medically examined his son from the Medical Board at IGMC, Shimla, and also from the Department of Psychiatry PGIMER, Chandigarh, however, the conditions of his son did not improve. The latest reports suggest that his mental condition is unlikely to improve. The petitioner has further submitted that he is the only bread winner of his family and is also suffering from heart disease. He is looking after an unmarried daughter of 36 years age, who was born as an unhealthy child, and as on date she is suffering from meningoencephalitis, which is the inflammation of the brain. The petitioner has further submitted that he is the only bread winner of his family and is also suffering from heart disease. He is looking after an unmarried daughter of 36 years age, who was born as an unhealthy child, and as on date she is suffering from meningoencephalitis, which is the inflammation of the brain. As per the petitioner he is now being saddled with medical expenses of his ailing son. The income of the petitioner is wholly dependent upon the apple crop and his income fluctuates due to climatic conditions affecting the crop. 4. As per the petitioner, the trial against the co-accused stands completed and he is acquitted. This fact is fortified by Annexure P-5 (judgment of the trial Court, dated 19.06.2016). As the mental condition of Vijay Khimta (son of the petitioner), who is an accused in the above referred Sessions Trial, is very unlikely to improve, the petitioner is seeking modification of impugned order dated 29.05.2014. 5. The respondent filed reply to the petition, wherein it is contended that son of the petitioner (Vijay Khimta) was involved in FIR No. 1 of 2008, registered in Police Station East, Shimla, under Section 148, 307, 326, 324 and 149 IPC. As per the respondent, the allegations against the son of the petitioner and his accomplice were that on 31.12.2007 at about 6:30 p.m., complainant, Akshay Bhardwaj, received a call from one Naveen Jasal asking him to come to Brockhost, but he refused. On relentless requests, the complainant alongwith his friends Joginder and Rishi Dhawan went to Brockhost, at about 07:45 p.m., where Vijay Khimta and his companions were present. Vijay Khimta attacked the complainant and his friends by inflicting darat (sickle) blows, causing serious injuries to them. Police registered an FIR against the accused persons and as some of the accused persons were juvenile, challan against them was filed before the Juvenile Justice Board, Shimla. It is further contended that during the pendency of the trial accused Vijay Khimta was found mentally unsound to defend himself, so the trial against him was stayed. The learned Sessions Judge (Forest), acquitted the other accused, namely, Sunny vide judgment dated 19.06.2014 and observed that file after its due completion be consigned to Record Room to be recalled as and when accused Vijay Khimta recovers from his mental illness and is declared fit to defend himself. 6. The learned Sessions Judge (Forest), acquitted the other accused, namely, Sunny vide judgment dated 19.06.2014 and observed that file after its due completion be consigned to Record Room to be recalled as and when accused Vijay Khimta recovers from his mental illness and is declared fit to defend himself. 6. The respondent has averred that the learned Court below passed the impugned order after taking into consideration all the germane medical record of accused Vijay Khimta. As per the respondent, the son of the petitioner inflicted darat blows on the person of Akshay and Joginder, due to which they suffered serious injuries. Latest medical record has not been annexed with the petition so as to highlight his current mental condition and the annexed medical record is of the years 2011-2012. In view of settled legal proposition of Cr.P.C. the trial against the son of the petitioner will resume as and when he ceases to be of unsound mind and capable of defending himself. 7. I have heard the learned counsel for the petitioner as well as learned Additional Advocate General for the respondent/State and have also gone through the record carefully. 8. At this stage, this Court takes into consideration the facts that as per the Medical Board, the son of the petitioner is not showing any signs of improvement and the averments made by the learned counsel for the petitioner that it is quite difficult for the petitioner to bring his son after every three months from his village to IGMC Hospital for his medical examination. The petitioner has also prayed that this period of three months may be enhanced. Evidently, the trial against the accused is pending adjudication before the learned Sessions Judge (Forest), Shimla, though the co-accused stands acquitted and some of the accused, who were juveniles at the time of the occurrence, are being proceeded before the learned Juvenile Justice Board, Shimla. As far as the son of the petitioner is concerned, this Court finds that the learned Sessions Judge (Forest), Shimla, after hearing the learned counsel for the parties, passed the impugned order dated 29.05.2014, which is extracted in extenso as under: “Statement of Dr. Ramesh Chand, Chariman of the Medical Board recorded. In view of the statement of dr. Ramesh Chand, Chairman of the Medical Board and the report of the Medical Board Ext. Ramesh Chand, Chariman of the Medical Board recorded. In view of the statement of dr. Ramesh Chand, Chairman of the Medical Board and the report of the Medical Board Ext. CA, at this stage it is proved to the satisfaction of this Court that accused Vijay Khimta is not fit to defend himself due to his mental health. Therefore, the trial of the accused Vijay Khimta is stayed till he recovered from his mental illness. The father of the accused Shri Krishan Lal, who has taken the custody of accused Vijay Khimta is directed through Sh. Pawan Thakur Counsel for the accused to submit status report of the accused after every three months commencing from 01.06.2014. However, the trial against accused Sachin will continue.” 9. This Court finds that the ends of justice would be subserved in case the impugned order dated 29.05.2014 is set-aside and the learned Sessions Judge (Forest) Shimla, is directed to consider the matter afresh with respect to mental illness of the son of the petitioner as well as the time gap of three months for production of the accused before the Medical Board. 10. Keeping in mind the above set of circumstances, the impugned order dated 29.05.2014 is set-aside with a direction to the learned District Judge (Forest), Shimla, to decide the matter afresh with respect to mental illness of the accused and his production before the Medical Board after interval of every three months. 11. The parties are directed to appear before the learned Sessions Judge (Forest), Shimla, on 5th December, 2016. In view of the above, the petition, as also pending application (s), if any, stand (s) disposed of. However, the parties are left to bear their own costs.