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2021 DIGILAW 483 (HP)

Shankar Dass v. State Of Himachal Pradesh

2021-07-30

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Instant criminal revision petition lays challenge to judgment dated 29.9.2011 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, Himachal Pradesh in Crl. RBT Appeal No. 26-K/10/2007, affirming judgment of sentence and order of conviction dated 6.7.2007/7.7.2007, passed by Judicial Magistrate First Class, Kangra in Cr. Case No. 40-II/2002 titled State of Himachal Pradesh vs. Shankar Dass and others, whereby learned court below though held the petitioner accused guilty of having committed offences punishable under S.325 IPC and accordingly convicted and sentenced him to undergo one year simple imprisonment of one year and to pay fine of Rs.2,000/- and in default, to further undergo simple imprisonment for three months, but acquitted all the other accused namely Bimla Devi, Paramjeet Kaur alias Pammi, Sukhvinder Singh and Kuldep Singh. 2. Precisely, the facts of the case as emerge from the record are that FIR Ext.W-9/B dated 5.10.2004 came to be lodged on the basis of statement of Shashi Devi, PW-1, complainant, wife of the injured Satpal, recorded under S.154 CrPC, Ext. PW-1/A, that on 6.5.2001, at 6/7 pm, she alongwith her husband Satpal had gone to their fields and thereafter having seen, accused Shankar Dass, who at the relevant time was ploughing the joint land, raised objection but the petitioner-accused Shankar Dass administered blow of Kahi (an iron instrument used for digging of land) on the head of Satpal. In the meantime, sons of petitioneraccused, Skhvinder and Kuldeep, also reached the spot and they alongwith Bimla Devi wife of the petitioner and Paramjeet Kaur, daughter of the petitioner, gave beatings to Satpal husband of complainant, as a consequence of which injured Satpal, suffered serious injuries and he was removed to the hospital for medical treatment. Injured was taken to Tanda Hospital, from where he was further referred to Pathankot and then to IGMC Shimla for medical treatment. After completion of investigation, police presented challan under Ss.323, 506 and 34 IPC, against all the accused named herein above, in the competent court of law. Learned trial Court after having found prima facie case against the accused, proceeded to frame charges under Ss.323 and 34 IPC against all the accused, who pleaded not guilty and claimed trial. 3. After completion of investigation, police presented challan under Ss.323, 506 and 34 IPC, against all the accused named herein above, in the competent court of law. Learned trial Court after having found prima facie case against the accused, proceeded to frame charges under Ss.323 and 34 IPC against all the accused, who pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case examined as many as ten witnesses in all, whereas, accused despite opportunity having been afforded to them, failed to lead any evidence in their defence. However, all the accused, in their statements recorded under S.313 CrPC, denied the prosecution case and claimed that they have been falsely implicated. 4. Learned trial Court on the basis of evidence adduced by prosecution though acquitted the accused BImla Devi, Paramjeet Kaur alias Pammi, Sukhvinder Singh and Kuldeep Singh, but held the petitioner-accused Shankar Dass guilty of having committed offences punishable under S.325 IPC and convicted and sentenced him as per description given herein above. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by learned trial Court, petitioner preferred an appeal under S.374 CrPC, in the court of learned Additional Sessions Judge-II Kangra at Dharamshala, but same was dismissed vide judgment dated 29.9.2011. In the aforesaid background, the petitioner-accused has approached this court in the instant petition, praying therein for his acquittal after setting aside judgments of conviction and order of sentence recorded by learned Courts below. 5. I have heard the parties and gone through record meticulously. 6. Before ascertaining correctness of submissions of learned counsel for the parties, it would be apt to take note of the fact that no appeal whatsoever came to be filed against the acquittal of other accused on behalf of the respondent State and as such, this court need not examine the correctness of findings recorded by learned trial Court qua acquittal of the accused, other than the present petitioner-accused, Shankar Dass. 7. Having carefully perused the evidence led on record by prosecution vis- -vis reasoning assigned by learned courts below while holding the petitioner guilty of having committed offence punishable under S.325, this court finds no force in the submission of learned counsel for the petitioner, Mr. 7. Having carefully perused the evidence led on record by prosecution vis- -vis reasoning assigned by learned courts below while holding the petitioner guilty of having committed offence punishable under S.325, this court finds no force in the submission of learned counsel for the petitioner, Mr. Divya Raj Singh, that the learned courts below have failed to appreciate the evidence in its right perspective, as a consequence of which findings to the detriment of petitioner have come on record, rather, this Court having carefully perused the statements given by material prosecution witnesses, is of the view that the prosecution successfully proved beyond reasonable doubt that the petitioner, while taking law in his hands, administered blow of Kahi on the head of injured Satpal, as a consequence of which he suffered serious injuries, hence, there appears to be no justification for this Court to interfere with the judgment of conviction and order of sentence recorded by learned trial Court. There is overwhelming evidence available on record, suggestive of the fact that the petitioner had caused head injury to Satpal on 20.5.2001. Medical evidence adduced on record clearly proves that Satpal sustained injuries on his head on account of blow of Kahi, administered by the accused, which were grievous in nature. 8. Pw-4 Satpal deposed categorically that on 20.5.2001, at 6.00 pm while he was coming back to fields with his wife and daughter, accused Shankar Dass was ploughing the joint land, as such he raised objection. This witness further deposed that there was an understanding between the parties not to cultivate the joint land till its partition, however, Shankar Dass, who at the relevant time was carrying Kahi in his hands, administered blow of Kahi on his head, as a result of which he fell down. If the statement made by aforesaid witness is read in its entirety, it though suggests that he was given beatings by other accused but since they stand acquitted and no appeal whatsoever, has been filed against their acquittal, there appears to be no reason to refer to that part of the statement. 9. Aforesaid version of Satpal stands corroborated by PWShashi Devi and PW-2 Bulbul, who are wife and daughter of the injured Satpal. 9. Aforesaid version of Satpal stands corroborated by PWShashi Devi and PW-2 Bulbul, who are wife and daughter of the injured Satpal. Both of them categorically deposed that when they saw the petitioner cultivating the joint land, Satpal raised objection on which the petitioner, administered blow of Kahi on his head due to which injured sustained injuries and fell down. While referring to the statements made by PW-1, PW-2 and PW-3, Shri Divya Raj, learned counsel for the petitioner vehemently argued that since all the above three witnesses admitted in their cross-examination that the relations inter se the complainant and petitioner, were not cordial on account of dispute of land, learned courts below ought not have placed reliance on the statements of these witnesses, while concluding guilt, if any of the petitioner, Shankar Dass. Mr. Divya Raj Singh, Advocate further argued that otherwise also, statements of aforesaid witnesses could not be taken into consideration by learned courts below being interested witnesses. 10. True it is that all the material prosecution witnesses relied upon in the case at hand, by prosecution are closely related to each other, but statements having been made by these witnesses cannot be brushed aside solely on account of their relationship, especially in view of the fact that the version put forth by them is duly corroborated by each other as well as PW-3 Kapoor Singh, who was not present on the spot, but having received information, he reached at the spot and found that the injured Satpal had suffered head injuries. Otherwise also, it is well settled by now that the statements/version of interested witnesses cannot be brushed aside solely on the ground of relationship rather, court below while taking into consideration statements of closely related /interested witnesses needs to be more careful and diligent and in case, there are no contradictions and inconsistencies in the statements made by closely related witnesses, their version cannot be ignored on account of close relation. 11. In the case at hand, if statements of all the witnesses are read in conjunction, they prove the story of the prosecution beyond doubt that on the date of alleged incident, petitioner Shankar Dass after being objected by Satpal, attacked him with Kahi and administered blow of same on his head, due to which he suffered serious injuries. 11. In the case at hand, if statements of all the witnesses are read in conjunction, they prove the story of the prosecution beyond doubt that on the date of alleged incident, petitioner Shankar Dass after being objected by Satpal, attacked him with Kahi and administered blow of same on his head, due to which he suffered serious injuries. As per prosecution witnesses, there was an understanding between the parties that the joint land shall not be cultivated till partition. Since petitioner breached the understanding/agreement, Satpal was well within his right to raise objection qua the cultivation of joint land and the petitioneraccused had no reason whatsoever to use criminal force against injured 12. Pw-3 Kapoor Singh deposed that he after having received information qua quarrel between Satpal and Shankar Dass, reached the spot, where he saw Satpal in injured and unconscious condition. This witness stated that the injured was removed to hospital Version put forth by this witness, who is an independent witness also corroborates version of prosecution with regard to administration of blow of Kahi on the head of injured by petitioner. Since at the time of alleged incident, none apart from PW-1 PW-2 and PW-3 was present and all these witnesses in unequivocal terms have stated that the petitioner Shankar Dass gave blow of Kahi on the head of Satpal, version put forth by PW-1 to PW-3 cannot be discarded on account of non-association of independent witnesses by the prosecution. Cross-examination of aforesaid witnesses nowhere suggests that the opposite party was able to extract from this witness anything contrary, to what they stated in their examination-in-chief, rather, evidence available on record clearly reveals that the statements of PW-1 to PW-3 inspire confidence and they being trustworthy could not be ignored by learned Courts below, while determining guilt of the petitioner. 13. Perusal of Ext.PW-5/A MLC proved in accordance with law by Dr. R.K. Abrol, clearly reveals that the petitioner was subjected to x-ray of skull and CT scan of head and there was a lacerated would of 1x1 cm over parietal region with abrasion. On the basis of X-ray and CT Scan, injury was declared to be grievous. Medical evidence fully corroborates the version of injured and other witnesses. Though Dr. R.K. Abrol, clearly reveals that the petitioner was subjected to x-ray of skull and CT scan of head and there was a lacerated would of 1x1 cm over parietal region with abrasion. On the basis of X-ray and CT Scan, injury was declared to be grievous. Medical evidence fully corroborates the version of injured and other witnesses. Though Dr. RK Abrol admitted in his cross-examination that the injury sustained by Satpal could be caused by fall on hard surface but there is no evidence /material available on record that the injured suffered injuries as detailed in MLC, Ext.PW-5/A on account of fall on the hard surface. 14. Since statements made by other witnesses are not relevant for determining guilt if any of the petitioner, this court sees not reason to refer to the same. 15. Consequently in view of detailed discussion made herein above, this court is of the view that judgments of conviction and order of sentence passed by learned Courts below are based on correct appreciation of evidence, as such, there is no scope, for this court to interfere with the same, present revision petition is dismissed. 16. Since, this court having heard matter at length, called for the report of probation officer with regard to conduct of the petitioner, learned counsel for the petitioner states that accused is 65 years old person having a family to support and in case at this fag end of his life is sent behind bars pursuant to judgments and order of conviction and sentence, grave prejudice would be caused to him and his family. Mr. Divya Raj Singh, Advocate, further states that more than twenty years have passed after alleged incident and during this period, accused has also suffered trauma on account of pendency of case against him firstly before trial Court then before appellate court and now before this court, as such, he deserves to be extended benefit of Probation of Offenders Act. 17. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Court in Yudhbir Singh versus State of Himachal Pradesh, (1998) 1 SLJ 58, wherein it has been held as under: "9. 17. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Court in Yudhbir Singh versus State of Himachal Pradesh, (1998) 1 SLJ 58, wherein it has been held as under: "9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons." 18. In this regard, reliance is placed upon judgment of the Hon'ble Apex Court in Ramesh Kumar @ Babla versus State of Punjab, (2016) AIR SC 2858, wherein it has been held as under: "7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life. 8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour." 19. Reliance is also placed upon judgment passed by Hon'ble Apex Court Hari Kishan & Anr versus Sukhbir Singh & Ors, (1988) AIR SC 2127, wherein it has been held as under: "8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:- "357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default." 20. In view of above law and submissions made by learned counsel for the petitioner, and taking into consideration facts of the case, I am of the considered opinion that petitioner can be granted benefit of S.4 of Probation of Offenders Act 1968. Probation Officer i.e. Tehsil Welfare Officer, Kangra, Himachal Pradesh in his report submitted pursuant to order dated 8.3.2021, has nowhere adversely commented against behaviour and conduct of the petitioner-accused, who has reported that offender's family has no previous record of crime and family belongs to low income group. It has also come in the report that no other case, save and except present case, stands registered against the petitioner/accused. Probation Officer has reported that as per Panchayat representatives, behaviour of petitioner is good in the society. 21. Accordingly, in view of above, petitioner-accused is ordered to be released on probation in terms of Section 4 of the Probation of Offenders Act, subject to depositing an amount of Rs. 25,000/- with the trial Court within four weeks, which, in turn, shall be disbursed to the complainant as compensation. He is further directed to furnish bonds in terms of Section 4(3) and (4) of the Act to the satisfaction of the trial Court, within ten days, from the date of passing of this order. 25,000/- with the trial Court within four weeks, which, in turn, shall be disbursed to the complainant as compensation. He is further directed to furnish bonds in terms of Section 4(3) and (4) of the Act to the satisfaction of the trial Court, within ten days, from the date of passing of this order. Needless to say that accused will abide by the terms and conditions of the bond in its letter and spirit, failing which, respondent-State shall be at liberty to approach the appropriate Court of law to make the beneficiary of the Act i.e. accused to serve the sentence as imposed by the Court below and further upheld by this Court. Record be sent forthwith alongwith copies of the JUDGMENT. 22. The petition stands disposed of in the above terms, alongwith all pending applications. Interim orders, if any, stand vacated. Bail bonds, if any, furnished by the petitioner shall also stand cancelled.