Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 144 (HP)

PAYARE LAL v. STATE OF H. P.

2019-01-11

TARLOK SINGH CHAUHAN

body2019
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the order of conviction and sentence passed by the learned Court below, the appellants have filed the instant appeal. 2. Appellants alongwith three others were made to face trial under Sections 367, 325, 324, 323 read with Section 34 of Indian Penal Code. 3. The prosecution story, in brief, is that on 13.07.2004, victim Sunil Kumar had gone to enqire about the welfare of his maternal grandmother who was admitted in Sarkaghat hospital and while coming back on 13.07.2004 itself, the victim alighted from the bus at Tatahar and was approaching his house when vehicle bearing registration No. HP-49-0143 being driven by Payare Lal came there. The other co-accused Sunil Kumar, Vinay Kumar @ Mirchi and Kuldeep were sitting in the car. Payare Lal stopped the car, Sunil Kumar and Vinay Kumar, who armed with knife and sticks, came out of the car and the victim was forcibly taken into the car and was brought towards Jahu side. It was further alleged by the prosecution that this incident was witnessed by Kamaljit and Rajender, who were present nearby. 4. It was the further case of the prosecution that Pankaj, who was also known as Pandit, also joined them at place Jahu and when they reached a lonely place near Batehal, all the accused persons took out the victim Sunil Kumar from the vehicle and gave him mercilessly beatings with hockey, belt etc. It was further alleged that the clothes of the victim were taken off and thereafter the accused persons caused burn injuries on his person with cigarette butts. It was also alleged that the victim was taken back in the said car to Jahu where the accused person purchased liquor and also took hot water in a kettle from the shop of Pappu and poured the same over the victim. Thereafter, the victim was thrown into Kalahu river in naked condition, where he lay unconscious for some time and gained conscious at or about 2:30 a.m. during the intervening night of 13/14.07.2004. On gaining some conscious, victim went to his house and again loss his consciousness. Thereafter, the victim was taken to CH Sarkaghat in vehicle and the matter was reported to the police, who registered an FIR against all the accused persons. 5. On gaining some conscious, victim went to his house and again loss his consciousness. Thereafter, the victim was taken to CH Sarkaghat in vehicle and the matter was reported to the police, who registered an FIR against all the accused persons. 5. The police after investigating the matter presented a final report against all the accused under the aforesaid sections. The prosecution examined 12 witnesses and tendered documentary evidence. Thereafter statements of accused persons under Section 313 Cr.P.C. were recorded wherein they denied the allegations of the prosecution and claimed that the victim had taken money from the accused persons and they had been falsely implicated. The accused examined three witnesses in defence. 6. The learned Trial Court after recording evidence and evaluating the same acquitted accused Sunil Kumar, Vinay Kumar and Kuldeep Sharma of all the offences, whereas the appellants Payare Lal and Pankaj Sharma were acquitted for the offence punishable under Section 367 of IPC by giving them benefit of doubt, however, they both were convicted for the offence punishable under Sections 325, 324, 323 read with Section 34 IPC and sentenced to undergo simple imprisonment for five years and a fine of Rs. 5000/- each under Section 325/34 IPC, simple imprisonment for three years and a fine of Rs.2000/- each under Section 324/34 IPC and simple imprisonment for one year and a fine of Rs.1000/- each under Section 323/34 IPC. In default of payment of fine, the convicts were to undergo simple imprisonment of two months. All the sentences were run concurrently. 7. As regards the acquittal of accused Sunil Kumar, Vinay Kumar and Kuldeep Sharma, the same has attained finality, as neither the State nor the victim has assailed these findings. 8. Payare Lal and Pankaj Sharma have assailed the conviction and sentence on the ground that the findings recorded by the learned Court below are perverse and, therefore, not sustainable in the eyes of law. 9. On the other hand, learned Additional Advocate General would argue that the findings as recorded are in tune with the story of the prosecution and the witnesses examined in this case fully support and corroborate each other, therefore, the appeal ought to be dismissed. I have heard learned counsel for the parties and have gone through the material placed on record. 10. I have heard learned counsel for the parties and have gone through the material placed on record. 10. A perusal of the judgment passed by the learned Court below would show that the entire basis for convicting the appellants is the testimony of PW2 Sunil Kumar, who according to the learned Court below had positively proved the complicity of the appellants. However, it needs to be noticed that the informant in this case is not the victim himself but happens to be his Mama Vijay Kumar, who was examined as PW1. In his statement, this witness has stated that his sister Shakuntla Devi had come to his residence at 3:00 a.m. on 14.07.2004 and took him to her in-laws house, which was at a distance of one km. from his residence. When he reached the house, he noticed that Sunil Kumar was lying in unconscious condition and his body was having injury marks and blood was also coming out of his nose. He tried to enquire about the injury sustained by Sunil Kumar but Sunil Kumar could not speak being unconscious. Thereafter, Anil Kumar his elder nephew arranged for a Jeep and they took Sunil Kumar to CH Sarkaghat and admitted him in the hospital. The police also came to the spot and when Sunil Kumar gained consciousness then he told that accused Sunil Kumar, Kuldeep, Pankaj Sharma, Vinay Kumar and Payare Lal had given beatings to him. After giving beatings, he was thrown in the nallah at Batehal. He further disclosed that he was taken by the accused in vehicle bearing registration No. HP-49-0143. He further deposed that thereafter his statement under Section 154 Cr.P.C. was recorded by the police vide Ext. PA and he was associated and joined in the investigation. He categorically stated that he was not taken to the spot by the police. 11. Now adverting to the statement of the victim, who was examined as PW2, it would be noticed that in the opening lines of his cross-examination he has stated that I was knowing Sunil Kumar and Payare Lal co-accused only prior to the incident by face. I came to know about the name of remaining accused when they obtained bail from the Court. I came to know about the name of remaining accused when they obtained bail from the Court. He further deposed that I remained in hospital at Sarkaghat for 11 days and during this period I came to know the name of remaining co-accused from my maternal uncle Sanjeev Kumar. After 12 days I came to know about the names of other accused. A perusal of the aforesaid statement makes it evidently clear that as on the date of incident, the victim was not knowing the accused except Sunil Kumar and Payare Lal. 12. Once that be so, then how the names of the accused persons find mention in the FIR, which is alleged to have been registered at the behest of the Mama of the victim on the basis of what was stated to him at the time when the victim Sunil Kumar regained conscious. Obviously, their names could not have been found mention in the FIR, which only establishes that the FIR is a manipulation at the instance of PW1. 13. Apart from that, it would be noticed that PW1 Vijay Kumar while being examined in the Court has not stated a single word regarding hot water being poured on the victim and has also not stated a word regarding the burn injuries with the cigarette butts. After all, it was this witness, who remained with the victim through out in the hospital as admitted during the course of cross-examination. 14. Interestingly, this witness does not even state that when he saw victim Sunil Kumar, he was in a naked condition nor does he even state that the victim had informed him that he had been stripped naked and thereafter hot water had been poured over him and he was also burnt with cigarette butts. 15. Noticeably, the victim while appearing as PW2 has tried to support his version that he did not raise hue and cry out of fear because the accused persons were carrying knife and sticks (danda) but then this was not so stated by him to the investigating agency nor was there any recovery of knife and sticks as alleged. 16. This assumes importance because as per his own statement, the victim was taken to Jahu bazaar where the accused Pankaj Sharma @ Pandit is alleged to have joined the rest of the accused. 16. This assumes importance because as per his own statement, the victim was taken to Jahu bazaar where the accused Pankaj Sharma @ Pandit is alleged to have joined the rest of the accused. The victim has tried to claim that hot water was thrown over his body by accused Pandit who took the same from the shop of Pappu but the said Pappu has not been examined in this case, calling for an adverse inference. The only plausible explanation offered by the learned Additional Advocate General for not examining Pappu is that he was claimed to have won over as per the statement of the victim himself. However, in case, it was so, then this witness Pappu had to be produced in Court and only thereafter could he have been declared hostile in accordance with law. Merely, because the victim apprehended that the witness Pappu may have been won over could not itself to be a ground for not examining this witness. 17. The victim claims that he was stripped and his clothes were lying at the place of occurrence and the same were recovered after he alongwith his father and the Investigating Officer went to the spot on 17.07.2004. This is so stated by the victim himself and the investigating officer PW12, who in his cross-examination states that I reached spot at 3:30 p.m. on 17.07.2004 alongwith Sunil Kumar and his father, PW Sanjeev, Vijay and Sumit Pal. Further, the father of the victim while appearing as PW5 does not even make whisper about the recovery having been effected in his presence. However, what is more important and has been conveniently ignored by the Court below is the testimony of the Dr. Keshav Kaundal PW11, who has categorically admitted in his cross-examination that during the period of admission in hospital, the patient remained in the hospital. This is yet another important aspect of the matter. The victim has claimed to have been beaten by hockey sticks, belt and then hot water poured over his body and, above all, his body was burnt with cigarette butts. If that be so, then, I really fail to understand as to how in such a condition, he could have been taken in a public transport i.e. bus to the spot, as it will not only be difficult but would have been impossible for the victim to have travelled in such a condition. If that be so, then, I really fail to understand as to how in such a condition, he could have been taken in a public transport i.e. bus to the spot, as it will not only be difficult but would have been impossible for the victim to have travelled in such a condition. Moreover, the victim has clearly admitted in his cross-examination that he had not told the police about the burn injuries caused with cigarette butt on his body. 18. It would also be noticed that the charge framed against all the accused was common and reads as under:- That on 14.07.2004 at about 8:15 a.m. at village Darpa, ill. Saryara, Teh. Sarkaghat, you accused alongwtih your co-accused in furtherance of your common intention, abducted Sunil Kumar in a car bearing registration No. HP49-143 and taken him towards Baldwara and gave merciless beatings with blunt and sharp edged weapon and threw him at place Kalhu Mor and you thereby committed an offence punishable under Sections 367/34 IPC within the cognizance of this court. Secondly, that you on the above date, time and place alongwith Your co-accused also gave merciless beatings with blunt and sharp edged weapon to Sunil Kumar, in furtherance of your common intention and threw him at place Kalhu Mor, causing grievous hurt and thereby committed an offence punishable under Sections 325, 324, 323 and 34 IPC within the cognizance of this Court. And I, hereby, direct that you be tried by this Court on the above said charge. Sd/- Sessions Judge, Mandi Certified that the charge has been read over and explained to the accused in the language he understands. Sd/- Sessions Judge, Mandi 19. It is not in dispute that all the five accused persons were tried on a specific accusation that only they in furtherance of the common intention had abducted victim Sunil Kumar in the car and thereafter given him beatings and thrown him at a place Kalhu Mor. They have been tried with a specific accusation that only they committed the offence in furtherance of the common intention and three of them stand acquitted and, therefore, even the appellants could not have been connected with the aid of Section 34 IPC. The effect of the acquittal would be that those who were with him did not co-jointly act with the fourth and fifth accused in committing the offence. The effect of the acquittal would be that those who were with him did not co-jointly act with the fourth and fifth accused in committing the offence. (Refer:- Krishna Govind Patil vs. State of Maharashtra, (1963) AIR SC 1413). 20. Same principles of law were reiterated in Maina Singh vs. State of Rajasthan, (1976) 3 SCR 651 . 21. A perusal of the charge would also show that there was no allegation against any of the accused including the appellants that they had either poured hot water on the naked body of the victim Sunil Kumar nor there is any charge with regard to the burnt injuries inflicted upon the victim by cigarette butts. Even further there is no charge that the victim was left naked at Kalhu Mor. No doubt the defect in charge unless it has the effect of prejudicing any of the accused persons, does not vitiate the trial. However, the accused cannot be asked to defend himself in regard to an offence or accusation he is not charged with. The omission may not be per se fatal, but it would be glaring circumstance pointing to prejudice. It is imperative that a man must know for what offence he is tried. 22. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. 23. In view of the aforesaid discussion and for the reasons stated above, I find merit in this appeal and the same is accordingly allowed and the judgment of conviction and sentence passed by the learned Sessions Judge, Mandi, in Sessions Trial No. 35/05 is set aside. Bail bonds, if any, furnished by the appellants are discharged.