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2016 DIGILAW 2532 (HP)

Dinesh Chander Sharma v. Swaran Singh

2016-12-01

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Victim of the occurrence and complainant in FIR No. 470/01 is in appeal before this Court. He is aggrieved by the impugned judgment dated 23.03.2009 passed by learned Additional Sessions Judge, Una, District Una, H.P. in Sessions Case No. 18/06 having arisen out of FIR No. 470/01 and Sessions Case No. 19/06 out of the complaint he filed, whereby the respondents (hereinafter referred to as the accused persons) have been acquitted of the charge framed against each of them for the commission of an offence punishable under Section 447, 342, 506-II and 367 read with Section 34 of the Indian Penal Code and the sentence awarded against each of them under Section 323 of the Indian Penal Code is also stated to be on lesser side. 2. The prosecution case as disclosed from the statement Ext. PW-11/A of the appellant-complainant shortly stated is that he had given the contract of construction of his house to accused Swaran Singh. The said accused in order to lay slab (lintel) of the house besides his own shuttering material used some planks and ‘Ballies’ belonging to the complainant also. On 8.09.2011 around 10.15 a.m. the said accused started opening the shuttering and to take the same to house. He noticed that the accused had been carrying shuttering material belonging to him also to his house. He objected to it. On this, accused Swaran Singh has called his co-accused Joginder Singh @ Dannu to identify shuttering. The said accused revealed that the shuttering being carried by accused Swaran Singh to his house was that of the said accused. On finding that accused Joginder Singh was telling lie, the complainant asked him as to why he did so. In the meanwhile, accused Mohinder Singh also arrived there though he had gone to the house and started interference in the conversation going on between complainant and accused Joginder Singh. Accused Mohinder Singh asked the complaint as to what he had to do with that ‘Balli’ which he was claiming to be his. On this, accused Swaran Singh made utterances that he had to take the same in his (sic.), to which obscene language according to complainant he objected to. On this, he was caught hold by both accused Joginder Singh and Swaran Singh. On this, accused Swaran Singh made utterances that he had to take the same in his (sic.), to which obscene language according to complainant he objected to. On this, he was caught hold by both accused Joginder Singh and Swaran Singh. Accused Swaran Singh hit his left side buttocks with “Jhabbal” in his hand which he had been using to open the shuttering. Their co-accused Mohinder Singh administered beatings to the complainant. PW-3 and PW-4 were also present and not made any effort to save him from the clutches of the accused persons. 3. Not only this, all the three accused had dragged him from backside gate of their house to the adjoining ‘Galli’ (street). He was made to lie on the heap of grits there also. He was also beaten by them with kicks and fisty cuffs. He thereafter was taken by them to the house of accused Swaran Singh. There he was pushed and thrown on a cot. Due to the people gathered there, the accused did not administer further beating to him there. His mother Smt. Krishna Devi (PW- 16) and his sister-in-law came for his rescue and saved him from the clutches of the accused persons. 4. The police was informed by PW-16. The investigation was conducted by PW-17 ASI Prem Chand, the then I.O. Police Post, Santokgarh. It is he who had recorded the statement Ext. PW-11/A of the complainant and also made the application Ext. PW-17/A for getting the complainant medically examined in the hospital. He prepared the spot map Ext. PW-17/B and recorded the statements of prosecution witnesses. He had taken into possession the iron rod, Ext. P-1 and shirt of complainant, Ext. P-2 vide recovery memo Ext. PW-12/A. He has also taken in possession two ‘Ballies’ Ext. P-3 and Ext. P-4 and one garder Ext. P-5 vide recovery memo Ext. PW-10/A. He got recorded the statements of PW-3 and PW-4 under Section 164 of the Code of Criminal Procedure in the Court of learned Additional Chief Judicial Magistrate, Una vide memo Ext. PW-17/C. Statement of Angad Singh Ext. PW-17/D, statement of Sonu Ext. PW-17/E, and that of S/Shri Ram Murti, Prem Lal, Usha Rani and Ashutosh, Ext. PW-17/F, PW-17/G, PW-17/H and PW-17/I respectively were also recorded as per version of the said witnesses. He has also recorded the statement Ext. PW-17/J of PW Moti Ram. The Medico Legal Certificate Ext. PW-17/C. Statement of Angad Singh Ext. PW-17/D, statement of Sonu Ext. PW-17/E, and that of S/Shri Ram Murti, Prem Lal, Usha Rani and Ashutosh, Ext. PW-17/F, PW-17/G, PW-17/H and PW-17/I respectively were also recorded as per version of the said witnesses. He has also recorded the statement Ext. PW-17/J of PW Moti Ram. The Medico Legal Certificate Ext. PW-1/A and Ext. PW-12/B were also collected from the hospital. 5. On the completion of the investigation, challan under Section 447, 342, 323, 506-II, 367 read with Section 34 of the Indian Penal Code was filed against all the accused. In view of offence punishable under Section 367 of the Indian Penal Code is triable by the Court of Sessions, therefore, not only the challan but the complaint filed by the complainant was also sent to Sessions Court for trial. 6. As pointed out at the out set, learned trial Judge has framed the charge under Section 447, 342, 323, 506-II, 367 read with Section 34 of the Indian Penal Code against each of the accused. Since they pleaded not guilty, therefore, the prosecution was called upon to produce the evidence in support of the charge so framed against the accused persons. The prosecution in turn has examined 17 witnesses in all. The material prosecution witnesses, however, are PW-12, the complainant, his mother Smt. Krishna Devi (PW-16), Sh. Ashutosh (PW-9) nephew of complainant, Sh. Hardeep Singh (PW-4), nephew of accused Swaran Singh, Swaran Kaur (PW-5), mother of the said accused whereas, Sh. Ram Murti (PW-6), Sh. Prem Lal (PW-7) (owner of the cart hired for carrying shuttering by accused Swaran Singh), Smt. Usha Rani (PW-8) and Sh. Moti Lal (PW-10), the eye witnesses. The remaining witnesses are PW-1 Dr. N.K. Angra and PW-15 Dr. Indu Bhardwaj. The remaining witnesses including the I.O. Prem Chand PW-17 are police officials. 7. On the other hand, the accused in their statements recorded under Section 313 of the Code of Criminal Procedure have admitted that the complainant had given the contract of construction of his house to accused Swaran Singh, however, according to said accused not in a sum of Rs.45,000/- but Rs.60,000/-. It is also admitted that on 8.9.2001 in the morning, accused Swaran Singh started removing unfinished shuttering, however, according to them the said accused was accompanied by Mohinder Singh and not Sonu and Angad, his nephews. It is also admitted that on 8.9.2001 in the morning, accused Swaran Singh started removing unfinished shuttering, however, according to them the said accused was accompanied by Mohinder Singh and not Sonu and Angad, his nephews. The rest of the prosecution case has either been denied by them being incorrect or for want of knowledge. In their defence, while answering second last question, it was stated that a false case has been registered against them at the instance of complainant who still owe a sum of Rs.40,000/- towards the complainant. 8. As pointed out at the out set, learned trial Judge has acquitted all the accused of the charge framed under Section 447, 342, 506-II, 367 read with Section 34 of the Indian Penal Code as was framed against each of them, however, convicted and sentenced to pay Rs.1,000/- each as fine for the commission of an offence punishable under Section 323 of the Indian Penal Code. 9. The impugned judgment has been sought to be quashed on the grounds inter-alia that the same has been passed without application of mind. There was ample evidence on record to show the involvement of the accused persons in the commission of offence punishable under Section 342, 367, 451, 504, 506-II, of the Indian Penal Code, however, they were erroneously acquitted form the charge framed against each of them. The lesser sentence awarded against accused-respondents has caused more harm to the complainant as well as the society as a whole and thereby caused miscarriage of justice to him. 10. The complainant as appellant while in person has strenuously contended that all ingredients of commission of an offence punishable under Section 342 and 367 of the Indian Penal Code stand established. The statements of PW-3 and PW-4 recorded under Section 164 of the Code of Criminal Procedure itself demonstrate that the complainant was taken by the accused persons to their place, however, for settlement of accounts. Whereas according to the complainant, he was kidnapped by the accused. The explanation that he has received injuries on his person by way of fall on shuttering material is wrong. The lesser sentence of fine under Section 323 IPC awarded against the accused is also stated to be against the public policy. 11. We have carefully analyzed the oral as well as documentary evidence. The explanation that he has received injuries on his person by way of fall on shuttering material is wrong. The lesser sentence of fine under Section 323 IPC awarded against the accused is also stated to be against the public policy. 11. We have carefully analyzed the oral as well as documentary evidence. As a matter of fact, as rightly pointed out by learned trial Judge, there are two sets of witnesses i.e. one set which includes the kith and kin of the accused, whereas, the other that of the complainant. PW-3 Angad Singh, PW-4 Hardeep and PW-5 Swaran Kaur, as noticed supra, are the nephews and mother of accused Swaran Singh. Their testimony amply demonstrates that the complainant and the accused quarreled at such a stage when accused Swaran Singh was in the process of removing the shuttering from the lintel of the house (under construction) of the complainant. Hot exchanges took place between the complainant and the accused on the issue of ownership of ‘Ballie’ (wooden plank meant for giving support to the shuttering). The statements Ext. PW-3/A and Ext. PW-4/A of PW-3 and PW-4 recorded by learned Additional Chief Judicial Magistrate under Section 164 of the Code of Criminal Procedure not at all implicate the accused persons and rather as per the same it is the complainant who assaulted accused Swaran Singh. It has also come on record by way of the testimony of PW-3 and PW-4 that the complainant though was taken by accused Swaran Singh to his house, however, for settlement of accounts. The close scrutiny of testimony of PW-3 to PW-5 lead to the only conclusion that some scuffle had taken place between the complainant and accused Swaran Singh. Subsequently, accused Joginder Singh and accused Mohinder Singh also joined that scuffle. Though it remained unexplained as to who was the aggressor, however, the fact remains that no injuries were there on the person of accused persons, whereas, the MLC Ext. PW-1/A and Ext. PW-12/B reveal that there were injuries corresponding to the time of occurrence in existence on the person of complainant. The nature thereof, of course, was simple in nature. The accused as such were convicted under Section 323 of the Indian Penal Code. PW-1/A and Ext. PW-12/B reveal that there were injuries corresponding to the time of occurrence in existence on the person of complainant. The nature thereof, of course, was simple in nature. The accused as such were convicted under Section 323 of the Indian Penal Code. They have not assailed the findings of their conviction and sentence any further by way of filing an appeal may be because only the sentence of fine has been awarded against them. 12. Now if coming to the own testimony of complainant, who has stepped into the witness box as PW-12 and that of his mother PW-16, it is apparent that some fight between him and the accused had taken place on the spot. The prosecution case to this effect finds corroboration from the MLC Ext. PW-1/A. The accused, no doubt, have denied the prosecution story being wrong as according to them the complainant in order to avoid the payment of balance amount i.e. Rs.40,000/- has engineered and fabricated this case against them falsely. The facts, however, remain that evidence as has come on record by way of the testimony of two sets of witnesses as aforesaid, some scuffle had taken place on the issue of ownership of one ‘Ballie’. Irrespective of there being no clinching evidence as to which of the party was aggressor, it would not be improper to conclude that it is the accused who had administered beatings to the complainant and caused thereby injuries simple in nature on his person. Being so, it is only a case under Section 323 IPC is made out against the accused persons and not under Section 342 or 367 read with Section 34 IPC, as no evidence cogent and reliable has come on record to show that the complainant was wrongfully confined by the accused persons within the meaning of Section 342 of the Code and that he was kidnapped by them within the meaning of Section 367 of the Code. He, no doubt, was taken by the accused to their home, however, to settle the accounts and not with malafide intention to harm him. It is for this reason, he himself has stated in his statement Ext. PW-11/A, which finds mention the very first version qua the manner in which the occurrence had taken place in their house, the accused had not administered beatings to him. It is for this reason, he himself has stated in his statement Ext. PW-11/A, which finds mention the very first version qua the manner in which the occurrence had taken place in their house, the accused had not administered beatings to him. Though, according to him, he was thrown on the cot, however, it seems that he was made to sit on the cot. Similarly, no evidence has come on record to show that he was threatened by the accused persons to do away with his life because independent witnesses PW-6 Ram Murti, PW-7 Prem Raj, PW-8 Usha Rani and PW-10 Moti Ram have not supported the prosecution case and rather turned hostile to the prosecution. The own testimony of complainant for want of corroboration from any independent source cannot be relied upon. His mother (PW-16) arrived at the place of accused and saved him from their clutches, therefore, her testimony that she witnessed the occurrence is also false. Even the complainant has also not said that the occurrence was witnessed by his mother. His testimony that she appeared on the scene of occurrence and tried to save him from the clutches of the accused rather reveals that PW-16 arrived there later on. 13. The ratio of the judgments of the Hon’ble Apex Court in Ram Lochan Ahir V. State of West Bengal, AIR 1963 SC 1074 , State of Maharashtra V. Annappa Bandu Kavatage, AIR 1979 SC 1410 , Jamatraj Kewalji Govani V. State of Maharashtra, AIR 1968 S.C. 178 , Raunki Saroop V. State, AIR 1970 Punjab and Haryana, 450 and Panna and others V. State of Rajasthan, 1987 Cri.L.J. 997 (Rajasthan High Court) is not attracted in the given facts and circumstances of this Case, hence need not to be referred in detail in this judgment. 14. True it is that in view of the ratio of judgments of the Hon’ble Apex Court in State of Madhya Pradesh V. Saleem @ Chamaru and another, 2005(3) Criminal Court Cases 330 (S.C.) and in Adu Ram V. Mukna 2005(2) RCR (Criminal) 64 inadequate sentence would do more harm and that the sentence should be in conformity with the atrocity and brutality with which the crime has been committed. One should also not lose sight of the fact that while determining the quantum of sentence against a convict, it is the magnitude of the crime committed, gravity and heinousness thereof as well as the manner in which it is committed, weigh in the mind of the Court. 15. In the given facts and circumstances, the complainant raised the issue of ownership of one ‘Ballie’ and it is on this both parties enraged and scuffled with each other and it is in that process, the complainant seems to have received injuries on his person. The offence cannot be said to be grievous in nature warranting for award of severe punishment to the accused. Otherwise also, for the commission of an offence punishable under Section 323 IPC, an offender can either be imprisoned for a term which may extend to one year or fine which may extend to Rs.1,000/- or both. Since the accused/convicts have been sentenced by learned trial Court with fine of Rs.1,000/- each, therefore, in view of there being no past criminal history in their credit, the sentence so awarded against each of them is just and reasonable. The law laid down by the Hon’ble Apex Court in the judgments (supra) is, therefore, distinguishable in the given facts and circumstances of this case. 16. In view of re-appraisal of the oral as well as documentary evidence on record, in our considered opinion, the trial Court has not committed any illegality or irregularity while passing the judgment under challenge in this appeal. The same, as such, is affirmed and the appeal is dismissed. Personal bonds furnished by the accused persons shall stand cancelled and sureties discharged.