State of H.P. Vs. Tek Chand and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/890899
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnJul-29-2005
Case NumberCri. Appeal No. 148 of 1999
Judge Surjit Singh, J.
Reported in2006CriLJ1893
ActsEvidence Act - Section 6; ;Indian Penal Code (IPC), 1860 - Sections 34, 323, 325, 341, 342 and 506; ;Code of Criminal Procedure (CrPC) - Sections 173 and 313
AppellantState of H.P.
RespondentTek Chand and anr.
Appellant Advocate H.K.S. Thakur, Dy. Adv. General
Respondent Advocate Y.P.S. Dhaulta, Adv.
Excerpt:
- surjit singh, j.1. this appeal by the state of himachal pradesh is directed against the judgment of a judicial magistrate whereby respondents tek chand and khimu, who were sent up for trial for offences under sections 323, 325, 341, 506 read with section 34 of the indian penal code, have been acquitted.2. a report under section 173 of the code of criminal procedure along with the relevant papers was filed in the court of judicial magistrate, wherein it was alleged that on 8-7-1996 around 8.30 p.m., the two respondents gave beating, by means of dandas, to one nagina ram, when he was returning to his village from hamirpur. when said nagina ram raised alarm, two persons thakru and bashakhu came to his rescue. the respondents then ran away from the spot. the matter was reported to the police, the next following morning. said nagina ram was got medically examined and it was found that he had sustained five injuries, two of which were grievous in nature.3. respondents were charged with the offences under sections 323, 325, 342 and 506 read with section 34 of the indian penal code. they pleaded not guilty to the charge. the prosecution examined seven witnesses, including the investigating officer and two doctors, to bring the charge home to the respondents. in their statement under section 313 of the code of criminal procedure the respondents denied that they had assaulted nagina ram and caused injuries to him. they took no specific plea. however to witnesses of the prosecution, including injured nagina ram, it was suggested that some unidentified persons had assaulted him and caused injuries and that due to darkness he could not identify his assailants.4. the learned judicial magistrate has acquitted the respondents holding that the testimony of the complainant is not corroborated by any independent witness.5. i have heard the learned deputy advocate general and the learned counsel for the respondents. also i have gone through the record of the case.6. injured nagina ram in his deposition as pw-1 stated in no uncertain terms that he was assaulted by the respondents and beaten up with dandas resulting in various injuries. admittedly, the incident had taken place at 8.30 p.m. nagina ram stated in the cross-examination that it becomes dark around 6.00 p.m. during rainy season. this part of his statement is not correct and is based on ignorance of a geographical fact, of which judicial notice can be taken. the incident had taken place on 8th july, 1996. the sun sets around 7.25 p.m. in the first half of july in this north western part of the country. even after the sun set there remains light for about, an hour. even after that it is not pitched dark and one can easily identify the persons passing by one's side. therefore, it cannot be said that nagina ram was not in a position to recognize or identify his assailants. it is true that nagina rani's daughter while in the witness box as pw-2 stated that moon was not there on that night and this statement is contradictory to the deposition of nagina ram that it was a moon lit night but in view of the above stated position this contradiction is of little consequence.7. the testimony of nagina ram complainant is corroborated by the medical evidence. pw-4 dr. hemant kapoor who conducted the medico legal examination testified that he noticed five injuries on the person of nagina ram and that two of those injuries were grievous, as per x-ray films ex. pw-3/a to ex. pw-3/c. he stated that the injuries appeared to have been sustained within 24 hours. the examination of the injured was conducted on 9-7-1996 at 5.45 p.m. and the incident, as already stated, took place on 8-7-1996 at 8.30 p.m. he also stated that injuries appeared to have been caused by means of some blunt object. he denied the suggestion put to him, on behalf of the respondents, that the injuries could have been caused as a result of fall on some hard object. the testimony of the witness thus corroborates the version of the complainant to the extent that injuries were caused to him by means of dandas.8. pw-3 dr. jaya vaidaya, radiologist, who x-rayed the hurt parts of the person of the complainant, stated that x-ray films ex. pw-3/a to ex. pw-3/c showed fracture of left clavicle and left humers and that after seeing the said films she issued the opinion ex. pw-3/d.9. pw-6 thakru testified that on the relevant day he was transporting some goods on his mules and that when he reached near the house of basakhu ram, he (basakhu ram) told him that he had heard some noise and that thereafter he accompanied by basakhu ram went to the spot and saw in the light of a torch that complainant nagina ram was lying with bleeding injuries and some persons running away but he could not identify them. he stated that when he inquired from nagina ram as to what had happened, he told that the respondents had beaten him up. the testimony of the witness that nagina ram told him that he was beaten up by the respondent is relevant under section 6 of the evidence act, because the witness had seen the assailants running away from the spot and almost at the same time nagina ram told him on enquiry that he had been beaten up by the respondents. this testimony also corroborates nagina ram's deposition. the first information report ex. pw-l/a which was lodged on the next following day also corroborates the testimony of nagina ram,10. learned counsel representing the respondents argued that basakhu ram the other alleged independent witness, had not been examined and so an adverse inference was required to be drawn against the prosecution. there is recorded statement of the assistant public prosecutor, on the record of the judicial magistrate that basakhu ram had been won over by the respondents and so he was given up.11. it was further contended by the learned counsel for the respondents that there was enmity between nagina ram and the respondents and because of that enmity the respondents had been falsely implicated. it is not believable that a person who has been so severely beaten up that he sustains two fractures, will not name the real assailants but some other persons, with whom he has an alleged enmity,12. and in fact there is no enmity between the complainant and the respondents. learned counsel stated that in the past there had been some compromise through the intervention of the panchayat between the complainant and the respondents when the respondents had allegedly teased a young daughter of the complainant and that this indicated that there was enmity between the two sides. the argument has been stated only to be rejected. the cross-examination of the complainant and his daughter pw-2 kumari sheela shows that one of the respondents, namely khimu, had been teasing pw-2 kumari sheela, the daughter of the complainant and once when the matter was reported to the panchayat, he apologized, in writing, and even after that he had been teasing her and threatening her. now if one of the respondents had been teasing the daughter of the complainant in the past and had even apologized when the matter was brought to the notice of the panchayat, that would not mean that there was any enmity between the complainant and the respondents. in fact the complainant and his daughter were the victims of the highhandedness of the respondent khimu who teased the daughter of the complainant. it appears that because the complainant and his daughter had reported the matter to the panchayat, respondent khimu felt offended and that was the motive for the commission of the crime.13. as a result of the above stated position, the appeal is accepted. the impugned judgment of the learned judicial magistrate is set aside and consequently both the respondents are convicted for the offence under section 325 read with section 34 of the indian penal code. they are sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of rs. 5,000/- each and in default of payment of fine to undergo rigorous imprisonment for a further period of three months each. the amount of fine, if realized, shall be paid to the injured, namely pw-1 nagina ram.14. the two respondents who are on bail shall surrender to their bail bonds before the learned trial court within four weeks from today to receive and serve out the sentence imposed upon them, failing which the learned trial court shall proceed against them in accordance with law.15. the appeal stands disposed of accordingly.
Judgment:

Surjit Singh, J.

1. This appeal by the State of Himachal Pradesh is directed against the judgment of a Judicial Magistrate whereby respondents Tek Chand and Khimu, who were sent up for trial for offences under Sections 323, 325, 341, 506 read with Section 34 of the Indian Penal Code, have been acquitted.

2. A report under Section 173 of the Code of criminal Procedure Along with the relevant papers was filed in the Court of Judicial Magistrate, wherein it was Alleged that on 8-7-1996 around 8.30 p.m., the two respondents gave beating, by means of Dandas, to one Nagina Ram, when he was returning to his village from Hamirpur. When said Nagina Ram raised Alarm, two persons Thakru and Bashakhu came to his rescue. The respondents then ran away from the spot. The matter was reported to the police, the next following morning. Said Nagina Ram was got Medically examined and it was found that he had sustained five injuries, two of which were grievous in nature.

3. Respondents were charged with the offences under Sections 323, 325, 342 and 506 read with Section 34 of the Indian Penal Code. They pleaded not guilty to the charge. The prosecution examined seven witnesses, including the Investigating Officer and two doctors, to bring the charge home to the respondents. In their statement under Section 313 of the Code of criminal Procedure the respondents denied that they had assaulted Nagina Ram and caused injuries to him. They took no specific plea. However to witnesses of the prosecution, including injured Nagina Ram, it was suggested that some unidentified persons had assaulted him and caused injuries and that due to darkness he could not identify his assailants.

4. The learned Judicial Magistrate has acquitted the respondents holding that the testimony of the complainant is not corroborated by any independent witness.

5. I have heard the learned Deputy Advocate General and the learned Counsel for the respondents. also I have gone through the record of the case.

6. Injured Nagina Ram in his deposition as PW-1 stated in no uncertain terms that he was assaulted by the respondents and beaten up with Dandas resulting in various injuries. Admittedly, the incident had taken place at 8.30 p.m. Nagina Ram stated in the cross-examination that it becomes dark around 6.00 p.m. during rainy season. This part of his statement is not correct and is based on ignorance of a geographical fact, of which Judicial notice can be taken. The incident had taken place on 8th July, 1996. The sun sets around 7.25 p.m. in the first half of July in this north western part of the country. Even after the sun set there remains light for about, an hour. Even after that it is not pitched dark and one can easily identify the persons passing by one's side. Therefore, it cannot be said that Nagina Ram was not in a position to recognize or identify his assailants. It is true that Nagina Rani's daughter while in the witness box as PW-2 stated that moon was not there on that night and this statement is contradictory to the deposition of Nagina Ram that it was a moon lit night but in view of the above stated position this contradiction is of little consequence.

7. The testimony of Nagina Ram complainant is corroborated by the Medical evidence. PW-4 Dr. Hemant Kapoor who conducted the medico legal examination testified that he noticed five injuries on the person of Nagina Ram and that two of those injuries were grievous, as per X-ray films Ex. PW-3/A to Ex. PW-3/C. He stated that the injuries appeared to have been sustained within 24 hours. The examination of the injured was conducted on 9-7-1996 at 5.45 p.m. and the incident, as Already stated, took place on 8-7-1996 at 8.30 p.m. He also stated that injuries appeared to have been caused by means of some blunt object. He denied the suggestion put to him, on behalf of the respondents, that the injuries could have been caused as a result of fall on some hard object. The testimony of the witness thus corroborates the version of the complainant to the extent that injuries were caused to him by means of Dandas.

8. PW-3 Dr. Jaya Vaidaya, Radiologist, who X-rayed the hurt parts of the person of the complainant, stated that X-ray films Ex. PW-3/A to Ex. PW-3/C showed fracture of left clavicle and left humers and that after seeing the said films she issued the opinion Ex. PW-3/D.

9. PW-6 Thakru testified that on the relevant day he was transporting some goods on his mules and that when he reached near the house of Basakhu Ram, he (Basakhu Ram) told him that he had heard some noise and that thereafter he accompanied by Basakhu Ram went to the spot and saw in the light of a torch that complainant Nagina Ram was lying with bleeding injuries and some persons running away but he could not identify them. He stated that when he inquired from Nagina Ram as to what had happened, he told that the respondents had beaten him up. The testimony of the witness that Nagina Ram told him that he was beaten up by the respondent is relevant under Section 6 of the Evidence Act, because the witness had seen the assailants running away from the spot and Almost at the same time Nagina Ram told him on enquiry that he had been beaten up by the respondents. This testimony also corroborates Nagina Ram's deposition. The first information report Ex. PW-l/A which was lodged on the next following day also corroborates the testimony of Nagina Ram,

10. Learned Counsel representing the respondents argued that Basakhu Ram the other Alleged independent witness, had not been examined and so an adverse inference was required to be drawn against the prosecution. There is recorded statement of the Assistant Public Prosecutor, on the record of the Judicial Magistrate that Basakhu Ram had been won over by the respondents and so he was given up.

11. It was further contended by the learned Counsel for the respondents that there was enmity between Nagina Ram and the respondents and because of that enmity the respondents had been falsely implicated. It is not believable that a person who has been so severely beaten up that he sustains two fractures, will not name the real assailants but some other persons, with whom he has an Alleged enmity,

12. And in fact there is no enmity between the complainant and the respondents. learned Counsel stated that in the past there had been some compromise through the intervention of the Panchayat between the complainant and the respondents when the respondents had Allegedly teased a young daughter of the complainant and that this indicated that there was enmity between the two sides. The argument has been stated only to be rejected. The cross-examination of the complainant and his daughter PW-2 Kumari Sheela shows that one of the respondents, namely Khimu, had been teasing PW-2 Kumari Sheela, the daughter of the complainant and once when the matter was reported to the Panchayat, he apologized, in writing, and even after that he had been teasing her and threatening her. Now if one of the respondents had been teasing the daughter of the complainant in the past and had even apologized when the matter was brought to the notice of the Panchayat, that would not mean that there was any enmity between the complainant and the respondents. In fact the complainant and his daughter were the victims of the highhandedness of the respondent Khimu who teased the daughter of the complainant. It appears that because the complainant and his daughter had reported the matter to the Panchayat, respondent Khimu felt offended and that was the motive for the commission of the crime.

13. As a result of the above stated position, the appeal is accepted. The impugned judgment of the learned Judicial Magistrate is set aside and consequently both the respondents are convicted for the offence under Section 325 read with Section 34 of the Indian Penal Code. They are sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs. 5,000/- each and in default of payment of fine to undergo rigorous imprisonment for a further period of three months each. The amount of fine, if realized, shall be paid to the injured, namely PW-1 Nagina Ram.

14. The two respondents who are on bail shall surrender to their bail bonds before the learned trial Court within four weeks from today to receive and serve out the sentence imposed upon them, failing which the learned trial Court shall proceed against them in accordance with law.

15. The appeal stands disposed of accordingly.