State of H.P. Vs. Lal Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/903696
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnApr-01-2010
Judge Surjit Singh and; Rajiv Sharma, JJ.
AppellantState of H.P.
RespondentLal Singh and ors.
Excerpt:
- surjit singh, j.1. state has appealed against the judgment dated 18th february, 1995, of the sessions court, whereby respondents lal singh, prem prakash (now dead) and mohan singh, who were tried for offence, under section 307, read with section 34 of the indian penal code, have been acquitted.2. case of the prosecution is that on 13th november, 1993, inhabitants of a building in housing board colony, jakhu, where sunil dutt (pw-7) and his father shri som dutt vasudeva (pw-1) were also occupying one house, were celebrating diwali and bursting crackers. pw-7 sunil dutt and his father pw-1 shri som dutt vasudeva were, however, inside their house. around 11.15 p.m., a stone hit one of their window panes, as a result of which it was broken. pw-1 shri som dutt vasudeva asked his son pw-7 sunil dutt to find out who had hit the window pane with a stone. when pw-7 sunil dutt came out. he saw the abovenamed three respondents outside their verandah bursting crackers. he asked the respondents why stone had been thrown at their house. upon that all the three respondents started giving beatings to pw-1 sunil dutt. father of pw-7 sunil dutt, pw-1 shri som dutt vasudeva, had also come out by that time. he too was assaulted. then two of the respondents, namely mohan singh and prem prakash caught hold of pw-7 sunil dutt and the third respondent, lal singh, dealt a blow of knife in his abdomen. that caused a bleeding wound. pw-7 sunil dutt and his father pw-1 shri som dutt vasudeva raised alarm, on hearing which people living in the locality gathered. after some time pw-1 shri som dutt vasudeva's second son sanjay dutt vasudeva, who had gone to celebrate diwali in the transit camp at some distance, also returned.3. pw-7 sunil dutt was rushed to the hospital. surgery was performed to save his life. someone informed the police, telephonically. pw-5 hc praval singh from police post, lakkar bazaar, reached the hospital. after ascertaining from the doctor if sunil dutt was fit to make statement, he recorded his statement, under section 154 of the code of criminal procedure, ex. pw-5/a. on the basis of that statement case was formally registered.4. on completion of investigation, report, under section 173 of the code of criminal procedure, was filed against all the three respondents. case was committed to the sessions court by the concerned judicial magistrate. sessions court charged the respondents with offence, under section 307, read with section 34 of the indian penal code, and on their pleading not guilty put them on trial.5. prosecution examined sunil dutt as pw-7, his father shri som dutt vasudeva as pw-1 and one sunil mehta (pw-3), as an independent eye-witness, to prove the charge. trial court noticed some contradictions in the testimony of the witnesses, with regard to the identity of respondent lal singh, who allegedly stabbed pw-7 sunil dutt in the abdomen, and acquitted the respondents.6. we have gone through the evidence and heard the learned additional advocate general as also the learned counsel representing the respondents.7. according to pw-7 sunil dutt, when he came out, after his father pw-1 shri som dutt vasudeva directed him to find out who had hit the window pane, with a stone, he saw all the three respondents in the verandah and that when he asked them why they had damaged the window pane, they started slapping and fisticuffing him and one of them dealt a knife blow in his abdomen, which caused a bleeding injury.8. pw-1 shri som dutt vasudeva, the father of pw-7 sunil dutt, stated that he followed sunil dutt, when he came out of the house and that he too was assaulted by the three respondents and that within his seeing two of the respondents, namely mohan singh and prem prakash, caught hold of his son sunil dutt and the third respondent lal singh dealt a knife blow in his abdomen.9. statement of shri som dutt vasudeva that respondents mohan singh and prem prakash caught hold of pw-7 sunil dutt, before knife blow was dealt by the third respondent, is contradicted by pw-7 sunil dutt himself. pw-7 sunil dutt, while in the witness box, did not say that he had been caught hold by respondents mohan singh and prem prakash, when the knife blow was dealt. even in the earliest version, which he gave to the police vide statement ex. pw-5/a, he did not say so.10. evidence of the prosecution, with regard to the identification of respondent lal singh (the person who dealt the knife blow) is also doubtful. in the earliest version ex. pw-5/a, respondents mohan singh and prem prakash are named. as regards the third person, who gave the blow, it is stated that he was wearing a red sweater. no red sweater was recovered by the police during the investigation of case nor was any test identification parade arranged.11. pw-7 sunil dutt and pw-1 shri som dutt vasudeva, during trial, tried to prove the identity of respondent lal singh, by claiming that they had seen lal singh visting their neighbour respondent mohan singh, on several occasions prior to the incident, but this statement of theirs cannot be believed without independent corroboration, because, as already noticed, in the fir, except for the colour of the sweater of the person, who gave knife blow, no other description is given. there is not even a whisper that respondent lal singh had ever been seen by the abovenamed two witnesses prior to the incident, leave alone there being a specific mention that he was a frequent visitor to the house of respondent mohan singh.12. pw-7 sunil dutt stated that when he was admitted to the hospital, respondent lal singh was shown to him and he had identified him to be the person who dealt the knife blow. this kind of identification is not only no identification but smacks of manipulations during investigation.13. for the foregoing reasons, we find ourselves in agreement with the view taken by the learned trial court that the identity of respondent lal singh, as the assailant, who stabbed pw-7 sunil dutt, does not stand established.14. however, from the evidence on record, we find that the other two respondents assaulted pw-7 sunil dutt as also his father pw-1 shri som dutt vasudeva. both the son and the father, in no uncertain terms, testified that the two respondents were there outside the verandah and that when they came out and questioned as to why their window pane had been damaged, these two respondents and one more person assaulted them and gave them fist blows, besides slapping them. the two respondents did not deny their presence, rather admitted that they were present on the spot, by throwing a suggestion to pw-7 sunil dutt that when they (the respondents) were arguing with them (the witnesses), two-three other persons came there and one of them stabbed pw-7 sunil dutt.15. respondents mohan lal and prem prakash were the neighbours of pw-7 sunil dutt and pw-1 shri som dutt vasudeva. the witnesses did not have any enmity with these respondents nor do they have any axe to grind to falsely implicate them in the case. therefore, there is no reason to disbelieve the testimony of these two witnesses that these two respondents assaulted, slapped and fisticuffed them. this act of respondents mohan singh and prem prakash amounts to an offence, under section 323 of the indian penal code. however, we find no evidence on record, suggesting that these two respondents shared the intention of the third unidentified person who stabbed pw-7 sunil dutt.16. we have been told that prem prakash has expired. so, the appeal as against him has abated. the second respondent, namely mohan singh, is convicted of the offence, under section 323 of the indian penal code. he be produced on 21st april, 2010, for being heard on the question of quantum of sentence.
Judgment:

Surjit Singh, J.

1. State has appealed against the judgment dated 18th February, 1995, of the Sessions Court, whereby respondents Lal Singh, Prem Prakash (now dead) and Mohan Singh, who were tried for offence, under Section 307, read with Section 34 of the Indian Penal Code, have been acquitted.

2. Case of the prosecution is that on 13th November, 1993, inhabitants of a building in Housing Board Colony, Jakhu, where Sunil Dutt (PW-7) and his father Shri Som Dutt Vasudeva (PW-1) were also occupying one house, were celebrating Diwali and bursting crackers. PW-7 Sunil Dutt and his father PW-1 Shri Som Dutt Vasudeva were, however, inside their house. Around 11.15 p.m., a stone hit one of their window panes, as a result of which it was broken. PW-1 Shri Som Dutt Vasudeva asked his son PW-7 Sunil Dutt to find out who had hit the window pane with a stone. When PW-7 Sunil Dutt came out. He saw the abovenamed three respondents outside their verandah bursting crackers. He asked the respondents why stone had been thrown at their house. Upon that all the three respondents started giving beatings to PW-1 Sunil Dutt. Father of PW-7 Sunil Dutt, PW-1 Shri Som Dutt Vasudeva, had also come out by that time. He too was assaulted. Then two of the respondents, namely Mohan Singh and Prem Prakash caught hold of PW-7 Sunil Dutt and the third respondent, Lal Singh, dealt a blow of knife in his abdomen. That caused a bleeding wound. PW-7 Sunil Dutt and his father PW-1 Shri Som Dutt Vasudeva raised alarm, on hearing which people living in the locality gathered. After some time PW-1 Shri Som Dutt Vasudeva's second son Sanjay Dutt Vasudeva, who had gone to celebrate Diwali in the Transit Camp at some distance, also returned.

3. PW-7 Sunil Dutt was rushed to the hospital. Surgery was performed to save his life. Someone informed the police, telephonically. PW-5 HC Praval Singh from Police Post, Lakkar Bazaar, reached the hospital. After ascertaining from the doctor if Sunil Dutt was fit to make statement, he recorded his statement, under Section 154 of the Code of Criminal Procedure, Ex. PW-5/A. On the basis of that statement case was formally registered.

4. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, was filed against all the three respondents. Case was committed to the Sessions Court by the concerned Judicial Magistrate. Sessions Court charged the respondents with offence, under Section 307, read with Section 34 of the Indian Penal Code, and on their pleading not guilty put them on trial.

5. Prosecution examined Sunil Dutt as PW-7, his father Shri Som Dutt Vasudeva as PW-1 and one Sunil Mehta (PW-3), as an independent eye-witness, to prove the charge. Trial Court noticed some contradictions in the testimony of the witnesses, with regard to the identity of respondent Lal Singh, who allegedly stabbed PW-7 Sunil Dutt in the abdomen, and acquitted the respondents.

6. We have gone through the evidence and heard the learned Additional Advocate General as also the learned Counsel representing the respondents.

7. According to PW-7 Sunil Dutt, when he came out, after his father PW-1 Shri Som Dutt Vasudeva directed him to find out who had hit the window pane, with a stone, he saw all the three respondents in the verandah and that when he asked them why they had damaged the window pane, they started slapping and fisticuffing him and one of them dealt a knife blow in his abdomen, which caused a bleeding injury.

8. PW-1 Shri Som Dutt Vasudeva, the father of PW-7 Sunil Dutt, stated that he followed Sunil Dutt, when he came out of the house and that he too was assaulted by the three respondents and that within his seeing two of the respondents, namely Mohan Singh and Prem Prakash, caught hold of his son Sunil Dutt and the third respondent Lal Singh dealt a knife blow in his abdomen.

9. Statement of Shri Som Dutt Vasudeva that respondents Mohan Singh and Prem Prakash caught hold of PW-7 Sunil Dutt, before knife blow was dealt by the third respondent, is contradicted by PW-7 Sunil Dutt himself. PW-7 Sunil Dutt, while in the witness box, did not say that he had been caught hold by respondents Mohan Singh and Prem Prakash, when the knife blow was dealt. Even in the earliest version, which he gave to the police vide statement Ex. PW-5/A, he did not say so.

10. Evidence of the prosecution, with regard to the identification of respondent Lal Singh (the person who dealt the knife blow) is also doubtful. In the earliest version Ex. PW-5/A, respondents Mohan Singh and Prem Prakash are named. As regards the third person, who gave the blow, it is stated that he was wearing a red sweater. No red sweater was recovered by the police during the investigation of case nor was any test identification parade arranged.

11. PW-7 Sunil Dutt and PW-1 Shri Som Dutt Vasudeva, during trial, tried to prove the identity of respondent Lal Singh, by claiming that they had seen Lal Singh visting their neighbour respondent Mohan Singh, on several occasions prior to the incident, but this statement of theirs cannot be believed without independent corroboration, because, as already noticed, in the FIR, except for the colour of the sweater of the person, who gave knife blow, no other description is given. There is not even a whisper that respondent Lal Singh had ever been seen by the abovenamed two witnesses prior to the incident, leave alone there being a specific mention that he was a frequent visitor to the house of respondent Mohan Singh.

12. PW-7 Sunil Dutt stated that when he was admitted to the hospital, respondent Lal Singh was shown to him and he had identified him to be the person who dealt the knife blow. This kind of identification is not only no identification but smacks of manipulations during investigation.

13. For the foregoing reasons, we find ourselves in agreement with the view taken by the learned trial Court that the identity of respondent Lal Singh, as the assailant, who stabbed PW-7 Sunil Dutt, does not stand established.

14. However, from the evidence on record, we find that the other two respondents assaulted PW-7 Sunil Dutt as also his father PW-1 Shri Som Dutt Vasudeva. Both the son and the father, in no uncertain terms, testified that the two respondents were there outside the verandah and that when they came out and questioned as to why their window pane had been damaged, these two respondents and one more person assaulted them and gave them fist blows, besides slapping them. The two respondents did not deny their presence, rather admitted that they were present on the spot, by throwing a suggestion to PW-7 Sunil Dutt that when they (the respondents) were arguing with them (the witnesses), two-three other persons came there and one of them stabbed PW-7 Sunil Dutt.

15. Respondents Mohan Lal and Prem Prakash were the neighbours of PW-7 Sunil Dutt and PW-1 Shri Som Dutt Vasudeva. The witnesses did not have any enmity with these respondents nor do they have any axe to grind to falsely implicate them in the case. Therefore, there is no reason to disbelieve the testimony of these two witnesses that these two respondents assaulted, slapped and fisticuffed them. This act of respondents Mohan Singh and Prem Prakash amounts to an offence, under Section 323 of the Indian Penal Code. However, we find no evidence on record, suggesting that these two respondents shared the intention of the third unidentified person who stabbed PW-7 Sunil Dutt.

16. We have been told that Prem Prakash has expired. So, the appeal as against him has abated. The second respondent, namely Mohan Singh, is convicted of the offence, under Section 323 of the Indian Penal Code. He be produced on 21st April, 2010, for being heard on the question of quantum of sentence.