Punjab-Haryana High Court
State Of Punjab vs Dimple Kumar on 31 July, 2008
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Criminal Appeal No. 675-DBA of 2000 -1-
****
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 675-DBA of 2000
Date of decision: 31.7.2008.
State of Punjab .....Appellant
Versus
Dimple Kumar ...Respondent
****
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE S. D. ANAND
****
Present: Mr. D.S. Brar, Deputy Advocate General, Punjab
Mr. K.L. Chaudhary, Advocate for the respondent.
S. D. ANAND, J.
Initially, we had allowed the State appeal (for reversal of the finding of acquittal recorded by the learned Trial Judge in case FIR No. 16/97 under Section 326 IPC, Police Station, Kathu Nangal) on merits after hearing the learned counsel who entered appearance on behalf of respondent/accused. The plea preferred on behalf of respondent/accused for review/rehearing stands allowed by us today, vide order recorded in the context in Criminal Misc. No. 32809 of 2008. That order has been passed by us in the larger interest of justice.
In view of the allowance of that request, we have heard learned State counsel and also the learned counsel for the Criminal Appeal No. 675-DBA of 2000 -2- **** respondent/accused afresh on merits and also perused the record.
On a particular occasion, complainant Baldev Raj spotted the respondent/accused entering a sugarcane field in the company of a girl. He called upon the respondent/accused Dimple Kumar to refrain from a such like undesirable activity. The 'advice' tendered by the complainant annoyed the respondent/accused. Few days thereafter, the complainant was proceeding towards his house after the shop closing hours. When he was in the immediate vicinity of his residence, he was accosted by the respondent/accused who had wrapped himself in a shawl. Before accosting the complainant, respondent/accused had crossed former's father as well who (father of the complainant) was standing in the street at that point of time. On reaching near the complainant, respondent/accused took out a glass from inside the shawl and threw liquid contents thereof on the face of the former. The vision of the complainant was completely blinded at that point of time and he also experienced sudden irritation on his face and eyes. On hearing the raula raised by the complainant, his father came over to the spot and tried to catch hold of the respondent/accused who, however, succeeded in fleeing from the spot. While respondent/accused was proceeding towards the house of Beera son of Gian Singh, he (former) was also spotted by Ram Saran son of Om Parkash, a cousin of the complainant. Baldev Raj complainant/injured was taken to Batala for treatment. From there, he was advised to be shifted to Gurunanak Dev Hospital, Amritsar. The Police recorded his statement there only on Criminal Appeal No. 675-DBA of 2000 -3- **** 12.2.1997 and registered first information report on the basis thereof. There were two injuries on the person of Baldev Raj, out of which one was declared grievous.
PW-1 Constable Bhupinder Singh was a member of the police party which had gone to Adda Jayanti Pur for investigation of a case on 16.2.1997. It was at Jayanti Pur that respondent/accused was produced by Member Panchayat Pawan Kumar before ASI Jagir Singh who headed the police party. This witness (PW-1 Bhupinder Singh) also attested the disclosure statement Ex. PA which respondent/accused made to ASI Jagir Singh at that point of time, thereby offering to get a glass recovered. This witness also attested the memo Ex. PB vide which glass, got recovered by the respondent-accused in pursuance of a disclosure statement Ex. PA, was taken into possession.
PW-2 Baldev Raj is complainant/first informant. PW-3 Jagdish Chand is father of Baldev Raj PW-2. PW-4 Pawan Kumar is Member Panachayat who produced the respondent/accused Dimple Kumar before ASI Jagir Singh.
PW-5 SI Jagir Singh is the investigating officer of the case.
PW-6 Dr. Baljit Singh Dhillon (Assistant Professor, Ophthalmology, Medical College, Amritsar) had examined Baldev Raj in response to a call received from the Surgical Department Unit and had opined that "in my opinion the damage to the right eye due to Criminal Appeal No. 675-DBA of 2000 -4- **** injury no. 2 is lasting and irreversible."
PW-7 Dr. Rattanjit Singh, Medical Officer, SHC, Bindi Aullakh, Amritsar had, (alongwith Dr. Rajiv Rampal) medico legally examined Baldev Raj on 12.7.1997 and found the following injuries on his person:-
"1. Bluish black discolouration with siging of haris was present on whole of the face including right ear, forehead more so on right side, front of neck and right side of the neck and upper aspect of the chest also. Ointment had been applied over those areas (Surgeons opinion and progress notes were advised.).
2. There was swelling on both the eye lids and the right eye. Patient was unable to open his right eye. (Advised eye surgeons opinion and progress notes.)"
Respondent/accused alleged false implication in the case on account of party faction.
DW-1 Rajinder Kumar was examined in defence evidence. He, while claiming to be a personal friend of Baldev Raj injured, averred to have visited the latter in the hospital. He testified to the effect that he had been informed by Baldev Raj that some chemical per chance fell upon his face when he was washing his face with water. He also testified that injured complainant Baldev Raj is a dealer in hardware and paints.
Criminal Appeal No. 675-DBA of 2000 -5-
**** Learned Trial Judge did not rely upon the prosecution presentation on a finding that FIR had been lodged after delay of two days and none from the market had been examined to support the complainant. In support of the former finding, learned Trial Judge also observed that first informant did not lodge a report with the police post located in the village itself. Jagdish Chand PW-3 having conceded that he had (after hospitalisation of Baldev Raj PW-2) gone back to Jayantipur while his wife stayed over in the hospital at Batala to look after the complainant, the learned Magistrate was of the view that if father of the complainant could have come out of the hospital for going home, there was no reason why he could not have availed of that period to lodge an FIR.
We now proceed to notice hereunder the reasons which persuade us to record a finding that impugned finding of acquittal deserves to be reversed.
Delay, perse, is not fatal to the validity of the prosecution presentation. In the course of the adjudicatory exercise, it is for the Court to find out for itself if the delay in the notification of the offence to the police has been availed of by the first informant/complainant party to make a concocted presentation or warped version or not. In the present case, we do not find that there was any unexplained delay in lodging of the FIR or that the period intervening had been utilised by the complainant to dish out a false version to the Court. It is neither here nor there for the learned counsel for the respondent/accused to find fault with the conduct of PW-3 Jagdish Criminal Appeal No. 675-DBA of 2000 -6- **** Raj (father of the complainant/injured) in having refrained from lodging a report with the police post proved to be located in the village itself. On the touchstone of normal human conduct, a parent would be first interested in obtaining medical aid for the injured child than going to the police in the first instance. Notifying the offence would, obviously, of lessor priority on the mind of a parent. Likewise, we do not find any merit in the contention that even when PW-3 Jagdish Chand had gone over to Jayanti Pur; while his wife stayed over in the hospital at Batala, he ought to have gone over to the police. There also, the learned counsel for the respondent/accused is not on a firmer footing. Once we understand the human emotional aspect, we do not have to travel any further to find that no fault can be found with the period which intervened the impugned occurrence and lodging of the FIR. It is not that Jagdish Chand had come out of the hospital just for going over to the police. He could have come out of the hospital for different purposes as well. When member of a family is hospitalised, someone from the family may have to visit home to meet certain requirements of the patient and also that of the attendant. The parents and other members of the family of the injured cannot be said to be having easy time when their relation is hospitalised following an acid assault. For that reason, we negate the plea that there was any unexplained delay in lodging of the First Information Report.
Insofar as the non-association of an independent person from the market is concerned, there also the plea raised is plainly Criminal Appeal No. 675-DBA of 2000 -7- **** misconceived. It is a matter of common observation that people are loathe to get associated with the investigation of a case. The predicament could be on account of the fear of reprisal and it could well be that those available just wish to avoid getting involved in a such like matter. The mouthful appeals by the police to the citizenry to cooperate with the police notwithstanding, the common man seems disinclined to associate himself with an investigation being conducted by the police to avoid repeated visits to the Police Station and the resultant harassment.
The prosecution has categorically proved the motive on the part of the respondent/accused which actuated him to commit the crime with which he was charged. There is precise evidence to the effect that Baldev Raj first informant/complainant had advised the respondent/accused to refrain from the indicated undesirable activity. He tendered advice to the respondent when he found the latter entering the sugarcane field in the company of a girl. The respondent appears to have taken exception to the advice tendered by Baldev Raj, who thereby earned the wrath of the former.
Be that as it may, it is apparent that the respondent/accused was nourishing a grievance on account of the above indicated advice on the part of Baldev Raj. Out attention has not been invited to any fact on account whereof PW-2 Baldev Raj first informant and his father would have been otherwise inclined to falsely implicate the respondent/accused. A normal man would like to ensure that a person responsible for his disfigurement does not Criminal Appeal No. 675-DBA of 2000 -8- **** escape the fury of law. In fact, it is not even an averment on behalf of the defence that complainant had any score to settle with the respondent/accused or any other reason to falsely implicate him in this case. It is neither here nor there for the respondent-accused to aver that he has been falsely implicated on account of party faction. Even the cognizance of a such like averment becomes difficult in the absence of the identification of the alleged factious.
Learned counsel for the respondent/accused, then, argues that the prosecution presentation deserved outright invalidation in view of the fact that a Civil plea filed by the complainant for award of compensation on account of the above indicated acid assault had been declined. It is argued, in the context, that the aforesaid civil suit had been preferred on precisely these very allegations. Finding in the aforementioned civil suit, the arguments proceeds, is binding on the criminal Court.
We have no hesitation in discarding the advocated plea. In the first instance, the impugned finding of exoneration was recorded by the learned Trial Judge on 24.7.2000. The civil suit afore-mentioned was dismissed, vide judgment and decree dated 22.8.2007. Learned Trial Magistrate could, obviously, not have taken cognizance of a fact which did not exist at the time criminal case was disposed of. Even presently, learned counsel is not on a firmer footing in arguing for the applicability of the Civil Court finding to the present case. That finding has no relevance. We are supported, in this view of ours, by a judicial pronouncement rendered Criminal Appeal No. 675-DBA of 2000 -9- **** by the Apex Court and reported as K.G. Premshankar Vs. Inspector of Police and another AIR 2002 Supreme Court 3372.
On a perusal of the material obtaining on the file, we are of the considered view that the prosecution has been able to prove the charge against the respondent/accused beyond shadow of reasonable doubt. The appeal filed by the State shall stand allowed. The judgment dated 24.7.2000 passed by the Judicial Magistrate Ist Class, Amritsar exonerating the respondent/accused shall stand set aside. The respondent/accused is sentenced to undergo rigorous imprisonment for a period of two years under Section 326 IPC and to pay a fine of Rs. 50,000/-. In the peculiar circumstances of the case, it is ordered that, on realisation of fine, the same shall be paid to the complainant. In default of payment of fine, the respondent/accused shall further undergo rigorous imprisonment for a period of six months.
( S. D. ANAND )
JUDGE
July 31, 2008 (ADARSH KUMAR GOEL)
Pka JUDGE