Himachal Pradesh High Court
Inder Dutt And Ors vs State Of Himachal Pradesh on 24 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 117 of 2007.
Judgment reserved on 10.5.2016
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Date of Decision: 24.5.2016.
______________________________ _________________________
[
Inder Dutt and Ors. .........Petitioners.
Versus
State of Himachal Pradesh ............Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? No.
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For the petitioners: Mr. D.N. Sharma, Advocate.
For the respondent: Mr. Rupinder Singh Thakur,
Additional Advocate General with
Mr. Rajat Chauhan, Law Officer.
_________________________________________________________
Sandeep Sharma, J.
The present revision petition filed under Section 397 Cr.PC read with Section 401 Cr.PC, is directed against the judgment dated 7.9.2007, rendered by learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Criminal Appeal No. 34-S/10 of 2004/03 titled "Inder Dutt and Ors. V. State of Himachal Pradesh", affirming the judgment and sentence dated 13.11.2003 of learned Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -2-Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh, in Case No. 26-2 of 1996 titled State of .
Himachal Pradesh V. Inder Dutt and Ors., whereby petitioners (hereinafter referred to as the 'accused') have been convicted/sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1000/- each, and of in default to further undergo simple imprisonment for a period of three months for the commission of the offence rt punishable under Section 325/34 of the Indian Penal Code, simple imprisonment for three months and to pay a fine of Rs.
1000/- each and in case of default in payment of fine to undergo simple imprisonment for one month, for having committed offence punishable under Section 323/34 of the Indian Penal Code and to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 2000/- and in default further to undergo simple imprisonment for a period of two months for the commission of the offence punishable under Section 506/34 of the Indian Penal Code. All sentences shall run concurrently.
::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -3-2. Brief facts of the present case are that on 4th June, 1995, at 9:00 am, Shri Lachhi Ram (hereinafter referred .
to as the'complainant-PW-3), approached the Police Station, Theog, Himachal Pradesh, wherein he lodged daily diary report No. 4 Ext.PW-2/A, stating therein that he is a resident of village Koti and has retired as Block Development of Officer about six months ago. He alleged that on 4.6.1995, around 6:30am he had gone to the house of one Siria Ram rt (Mason) in Village Janech, as he had not been coming to do the construction work for past three days. When the complainant met aforesaid Siria Ram, he informed that he could not come due to death in his relations and promised to come to the work on that day. Thereafter, complaint-PW-
3 left the house of Siria Ram for his village but on the way, while he was going back, he went to the water tank in Koti Khud, which was constructed by him. He saw petitioner No.1-accused, Inder Singh, damaging the source from where the water flows to the tank. He asked him not to do so. But petitioner No.1-accused started hurling abuses and misbehaving with him. The complainant also upbraided ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -4- petitioner No.1-accused for calling the names and misbehaving with him. However, thereafter, petitioner No.1- .
accused clapped and two persons namely Raghuvir Singh and Daulat Ram (Petitioners No. 2 and 3 respectively) came on the spot, who were hiding in the fields of the petitioner No.1-accused. They then caught hold of the complainant of and started beating him and threatened to be killed. The accused also proclaimed that he would be shot dead and rt they are very dangerous persons, who always move armed with the guns. The complainant also apprehended danger to his life at the hands of the miscreants. He also suffered injuries on his left ear and other parts of the body because of the beatings given to him by the petitioners-accused, however, he got himself freed from the paws of the accused with great hardship. Police on the basis of daily diary report, got the injured-complainant medically examined in Civil Hospital, Theog, from where, he was referred to DDU Hospital, Shimla. Record further reveals that from DDU Shimla, he was again sent to IGMC, Shimla and eventually, to PGI Chandigarh for checkup/treatment. On medically ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -5- examined, five injuries were found on the person of the victim-complainant. Injuries No. 1 to 3 were declared .
grievous in nature, whereas remaining were found to be simple. Police after obtaining the details of his medical treatments, registered the FIR No. 134/95 (Ext.PW-2/B) in Police Station Theog. During investigation, police apart from of taking into consideration shirt and vest of the injured having blood stained, also procured Medico Legal Certificates rt (MLC). Site plan indicating the place of alleged incident was also drawn and statements of the witnesses under Section 161 Cr.PC were also recorded. Police after completion of necessary investigation, filed final report in the competent court of law against the accused as envisaged under Section 173 Cr.PC. The court of learned Judicial Magistrate, Theog, after perusing the relevant documents on the record reached to the conclusion that prima facie case exists against the accused and accordingly, charged them under Section 325/34, 323/34 and 506/34, of the Indian Penal Code.
However, petitioners-accused pleaded not guilty and claimed to be tried.
::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -6-3. Learned trial Court also recorded the statements of the accused under Section 313 Cr.PC, wherein .
accused admitted the fact that the complainant had constructed the water tank in Koti Khad but subsequently, denied the alleged incident of beatings. Petitioners-
accused also examined two witnesses in their defence. The of learned trial Court after completion of the trial found them guilty and convicted them for the offences, as mentioned supra.
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4. Feeling aggrieved and dissatisfied with the impugned judgment, petitioners-accused preferred the criminal appeal before the learned Additional Sessions Judge, Fast Track Court, Shimla, HP. However, the same was also dismissed and judgment of the learned trial Court was upheld. Hence, the present criminal revision petition by the petitioners-accused.
5. Mr. D.N. Sharma, learned Advocate, appearing on behalf of the accused vehemently argued that the judgment of both the courts below are not sustainable in the eyes of law, as the same are not based upon the correct ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -7- appreciation of the evidence available on record. He further contended that the courts below while passing the .
judgment have not examined/appreciated the material evidence on record in its right perspective, rather, it is based on conjectures and surmises. It was also contended that there was no proof that the accused had common intention of to cause serious hurt to the complainant-PW3 and injuries on his person were actually caused in the furtherance of the rt common intention of the accused. Mr. Sharma strenuously argued that learned appellate Court while dealing with the plea, specifically raised by the petitioners-accused that learned trial Court has not given any finding on the grievous injuries allegedly caused to the complainant by the accused in furtherance of any common intention of the petitioners-
accused and has not dealt with issue at all and, as such, great injustice has been caused to the petitioners-accused.
He also contended that in the present case allegedly, the complainant was only administered fist blows and hence, findings that grievous injuries were caused to the complainant, are contrary to the material available on ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -8- record and medical evidence brought on record, was not also sufficient for the courts to return finding of the .
complainant actually having suffered the grievous injuries.
Rather, doctor, who allegedly examined the complainant at Chandigarh was not examined and only his report was relied upon by the learned trial Court. He specifically stated that of since there was evidence on record goes to suggest that brother of the complainant had actually conducted the X-
rt ray of the complainant, report of the same could not be taken into consideration by the courts below. Furthermore, brother of the complainant was not examined. Rather, request of the petitioner to examine the complainant medically was rejected without any sustainable ground. It was also contended on behalf of the accused that perusal of the evidence on record suggests that there were major contradictions in the statements of the witnesses and as such, same could not be taken into consideration by the courts below while convicting the accused.
6. Lastly, Mr. Sharma, also stated that there was no evidence to the effect that injuries in question could be ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP -9- caused by the fist blows, rather, there was no independent witness to the alleged occurrence and, as such, judgment of .
the courts below deserve to be quashed and set-aside and accused may be acquitted of the charges framed against them.
7. On the other hand, Mr. Rupinder Singh Thakur, of learned Additional Advocate General, appearing on behalf of the respondent-State vigoursly supported the judgment rt passed by the courts below and stated that no interference of this Court is warranted in the instant case because bare perusal of the impugned judgment suggests that same are based on correct appreciation of evidence available on record. There is overwhelming evidence available on record to suggest that complainant was given beatings by the petitioners-accused, as a result of same, grievous injuries were inflicted on the person of complainant. In sequel, the complainant became hard of hearing, which fact stands duly proved with medical evidence available on record.
8. Mr. Thakur also stated that this Court has very limited powers under Section 397 Cr.PC, to re-appreciate the ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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entire evidence on record, while exercising its revisionary jurisdiction, especially, when the courts below have dealt .
with each and every issue while passing judgment of conviction and sentence, as discussed above.
9. I have heard learned counsel for the parties as well carefully gone through the record.
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10. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary rt jurisdiction but in the instant case, where petitioners-accused have been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
11. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty .
of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the of judgment is reproduced as under:-
8. The object of Section 483 and the purpose rt behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section
482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1).
However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of .
sentence or order."
12. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as nine prosecution witnesses whereas petitioners-accused of also examined two witnesses namey Balak Ram and Rajinder Singh in their defence.
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13. PW-3, the complainant, Lachhi Ram, deposed that on 04.6.1955, when he had gone to call his meson Siria Ram, who had actually not been coming at the construction site for 3-4 days. After having confabulation with the meson, when complainant was going back to his house, he went to the water tank, which was constructed by him and saw accused-petitioner No.1-Inder Singh, damaging the source from where the water flows to the tank. He had affixed a pipe for the purpose of irrigation/cultivation of his fields, however, on his asking/request, petitioner No. 1, did not stop and started hurling abuses on the complainant. The complainant asked him not to do so but latter challenged ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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him and inflicted a blow on his left ear (temporal region), as a result of which, the blood started oozing out of his ear. He .
categorically stated that thereafter, he clapped and two persons namely Raghuvir Dutt and Daulat Ram (accused-
petitioners No. 2 and 3) came to the spot and also gave him merciless beatings. He candidly stated that petitioner No. 1 of climbed on his chest and kept on giving the fist blows on his 'Kanpati' while other two accused caught hold of him and rt kept on beating him. Due to the aforesaid beatings, the complainant suffered injuries on his ear, chest and neck etc. PW-3, the complainant also stated that he was rescued by his daughter and Sher Singh, who later on took him to the Police Station Theog, Shimla. Though, in his cross-
examination, he stated that house of Siria Ram (mason) is not visible from the source of water and he stayed in the house of Sh. Siria Ram for half an hour. It has also come in his cross-
examination that the passage was slippery and there were stones on the way. He also stated that if Shri Dev Yog, Shri Sher Singh and his daughter had not reached the spot, the accused might have killed him. Thereafter, he was lifted by ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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Shri Sher Singh etc., and taken to his residence. Subsequently, he went to the Police Station Theog and lodged the report.
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He was got medically examined by the police at Civil Hospital, Theog, however, lastly, he was referred to PGI Chandigarh after being medically examined by DDU Hospital and IGMC, Shimla. He specifically denied that of boundaries of his land adjoin the land of the accused though he admitted that litigation with regard to the water rt had taken place between him and one Shri Mohan Singh.
Rather, it emerges from his cross-examination that earlier, he was on talking terms with the accused, but after the occurrence, he has stopped talking to them. He specifically denied the suggestion put to him in the cross-examination that accused did not beat him and they have been falsely implicated by him. He also controverted the suggestion put to him by the accused that he actually fell in Khud and got injured. Suggestion put to him that his brother Sh. Yog Raj is a Technician in the X-ray Department and his X-ray was got conducted by Yog Raj, where his one of ribs was shown to ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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be fractured, was also denied by him. He also denied that he is hard of hearing since childhood.
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14. Careful perusal of the statement made by the complainant-PW-3 in his examination-in-chief as also the cross-examination leaves no doubt with regard to the beatings given to the complainant by the accused that too of mercilessly. Sequence of events narrated by the complainant while deposing in his examination-in-chief as rt well as cross-examination suggests that he has been very very consistent and specific in making statement rather defence has miserably failed to, while cross-examining him, shatter his testimony. Interestingly, no suggestion worth the name that complainant had any prior animosity or ill will with the accused and he has falsely implicated the petitioners-
accused was put to the complainant. The complainant has been very specific while giving the timing of his visit to the house of mason or thereafter to the water tank. Though, it has also come in his statement that alleged incident was witnessed by Shri Dev Yog, Shri Sher Singh and his daughter.
However, Sh. Sher Singh could not be served for want of ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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correct address and his statement could not be recorded.
15. Kumari Indira Devi daughter of the complainant .
appeared as PW-4. PW-4 Indira Devi stated that on that day, she had gone to tether the cattle and her father-
complainant, who had gone to village Janech was returning home. As per her statement, petitioner No. 2 Raghuvir Singh of was irrigating the fields and he threw the pipe and ran towards the cries and thereafter, she and Shri Sher Singh rt went to the Khud and found her father lying on the ground.
She specifically stated that petitioner No.1-accused was sitting on his chest, whereas other two were administering the beatings. Moreover, she raised an alarm, picked up a stone and inquired from the accused as to what were they doing. Accused remarked that in case, she throws the stone, she will be killed and they left the place. Her father-the complainant suffered injuries on ear and mouth etc. She and Sher Singh brought him home, and thereafter, police recorded her statement. In her cross-examination, she has admitted that her statement was recorded by the police after 4-5 days of the accident but she denied that path in ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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the Khud was slippery. She admitted that the site of the occurrence was visible from the place, where she was .
actually grazing the cattle. PW-4 also admitted that Sher Singh had met her near the water tank and at the time accused were whacking her father. It also came in her cross-
examination that she is not aware that whether there is any of dispute with regard to the boundary of the land of accused.
She denied the suggestion that she did not witness the rt alleged incident and has been falsely making the statement.
She also denied that her father-complainant slipped and got hurt.
16. Smt. Mathi Devi, PW-1, stated in her statement that two years back, when she was going to Theog, the complainant and his daughter met her on the way near the house of one Shri Raju, who was also there and at that time, the blood was oozing out on the person of the complainant.
On inquiring, the complainant narrated the story of beatings to her. She admitted that alleged incident did not take place and no shirt was produced, in her presence. At this stage, she also controverted that the statement Mark-X later ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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on exhibited as Ext.P-9/C was made by her at the time of investigation, where it was so recorded.
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17. Mr. Dilmi Ram-PW-5, stated that at the time of incident, he was present in his house. Someone called him in the morning and remarked that a quarrel has taken place between the complainant and the petitioner No. 3 Daulat of Ram, four-five persons should be called from the village but none was there when they reached the spot. On his rt statement, prosecution declared him hostile. However, in his cross-examination, by learned APP, he stated that the spot is half KM away from his house and he had come to know later that the dispute regarding water had taken place. He denied the particular portions of the statement mark 'X' (Ext.PW-9/D) which was made by him before the police under Section 161 Cr.PC.
18. H.C. Ved Parkash (PW-2) brought the record as well as proved Ext.PW-2/A and Ext.PW-2/B and the copies of Rapat No. 4 and FIR respectively.
19. Dr. Ramesh Sharma (PW-8), medically examined the complainant-injured and issued the medico legal ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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certificate Ext.PW-8/A. The X-ray is also exhibited as Ext.PW-
8/B. However, the aforesaid Dr. Ramesh Sharma referred the .
complainant-injured to ENT Specialist, DDU Hospital, Shimla for opinion regarding the injury of the ear. The Specialist opined that such injury is grievous. X-ray report of chest also suggested fracture of 5th rib left side. Opinion of the ENT of specialist is exhibited as PW-6/A. Report of the PGI, Chandigarh, which was attested by him as PW-8 has been rt placed on record as Mark-X. It has also come in the statement of the doctor that the injuries which were found in on the person of the complainant can be caused with a blunt weapon. However, in his cross-examination, he admitted that his opinion is based on Ext.PW-6/A which is placed on record as mark 'X' and injuries detailed in Ext.PW-
8/A could be resulted by failing on hard surface. However, he denied that he does not know that the Radiographer is the brother of the complainant.
20. Dr. D.C. Chauhan, PW-6 who was working as ENT Specialist, DDU Hospital Shimla, stated that the complainant-injured was referred to him by PW-8 Civil ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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Hospital, Theog, for expert opinion regarding loss of hearing.
He examined the injured and referred him for hearing .
assessment to IGMC, Shimla. Since the report of IGMC was doubtful, the patient was sent to PGI, Chandigarh for opinion. PW-6 stated that PGI authorities gave its opinion i.e. Ext.PW-6/A whereby injury No. 1 was declared as grievous in of nature. He in his cross-examination also admitted that this injury can be caused by fall on a hard surface and the rt injured might be suffering from loss of hearing since his birth.
21. SI Roop Singh, PW-9, who investigated the case deposed that after the receipt of the medical opinion, FIR-
PW2/B, was registered by him. He also stated that while investigating the offences, he prepared the site plan Ext.PW-
9/A, specifically pointing the place of the happening and also taken into possession his shirt Ext.PA and vest Ext.PB having blood stains as per memo Ext.PW-9/B and sealed them. He also recorded the statements of witnesses under Section 161 Cr.PC and proved Ext.PW-9/E i.e. the copy of Rapat No. 22, dated 21.7.1995 which was in the Police Station Theog. In his cross-examination, he stated that he is ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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not aware of the fact that Yog Raj, who is posted as X-Ray Technician in Theog Hospital, is the real brother of the .
complainant. He has specifically denied the suggestion that he did not record the statements of witnesses correctly and the petitioners-accused have been famed.
22. After careful perusal of the statements given by of the aforesaid prosecution witnesses as well as documentary evidence available on record, it is clearly established that on rt 4.6.1995, complainant was given beatings by the accused, as a result of which, he suffered grievous injuries on his left hear (temporal region). Medical evidence available on record buttress the version of the complainant-PW-3 that he was given beatings by the petitioners No. 1-Inder Dutt on his left ear, which is a temporal region. Admittedly, complainant PW-3 in the present case, has been medically examined by doctors of different hospitals i.e. first at Civil Hospital Theog, DDO Shimla, IGMIC, Shimla and finally in PGI.
It has been specifically opined that injury No. 1 is grievous in nature, as has been stated above also. If the sequence of events given by PW-3, complainant while making statement ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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before the court is taken into account, it can be safely inferred that statement of PW-3 is confidence inspiring and .
he has been very very consistent and specific in stating that injuries were caused to him by the accused. On the other hand, no suggestion worth the name was put to PW-3 from where it could be extracted that there was some prior of animosity or enmity between PW-3-complaiant and the petitioners-accused and he with a view to implicate them rt deposed falsely before the Court. Rather, PW-3 has specifically stated that dispute arose between him and the accused when he tried to stop the accused from breaching the water tank which was constructed by him. Though, the accused in their statement under Section 313 Cr.PC stated that complainant had suffered injuries due to fall as the path was full of stones and slippery.
23. To my mind, even this aforesaid statement of the accused is sufficient to conclude that accused were present at the site of occurrence on the date of alleged incident. If for the sake of arguments/discussion, this aforesaid statement of the accused that injuries caused on ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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PW-3 were due to fall on the path, is taken to be correct, then it can be safely presumed that at that relevant time, .
accused were present at the spot of occurrence, then only they could know with regard to the aforesaid injury suffered by the complainant due to fall. If the aforesaid statement given by the accused under Section 313 Cr.PC, is taken to of be correct, the only question arises, whether accused were present at the time of incident because they have been rt specific and candid in stating that PW-3 suffered injured due to fall on the slippery path. Apart from this aforesaid statement of accused, there is nothing on record to substantiate that complainant actually suffered injuries due to fall. Even two other injuries apart from injury caused on the left ear of the complainant were also found to be grievous in nature. Admittedly, in X-ray report, it has come that the ribs of the complainant were found fractured, which strengthen the version of complainant as mentioned in the statement of PW-3, where he categorically stated that accused Inder Dutt climbed on his chest and other two accused caught hold of his arms. Though, accused attempted to prove that ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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aforesaid X-ray is not genuine because X-ray was conducted by technician Shri Yog Raj, who is his brother but as has been .
discussed herein above that nothing in this regard was suggested to the complainant or any witnesses that MLC Ext.PW-8/A and X-ray report are false and fabricated one and it also remains fact, as has been noticed by the courts of below, that if the accused were really suspicious about the X-ray report placed on record by the prosecution, they could rt always move an application immediately after the incident before the court for getting the PW-3 medically re-examined but record reveals that application was moved almost after 5-6 years of incident i.e. 15.11.2000. This aforesaid conduct of the accused itself suggests that the plea of the accused that X-ray is fabricated, is definitely the second thought and as such same deserves to be rejected outrightly. There is specific opinion of the doctor with regard to the fact that ribs of PW-3 have been fractured and accused have not placed anything on record to falsify the X-ray report as well as opinion of the doctor. Admittedly, if the aforesaid opinion is stated to be correct in normal course, it takes 2-3 months for ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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the person to recover from the fracture but there is no explanation worth the name that why it took 5-6 years for the .
accused to move an application for getting the complainant medically re-examined, if they had suspicion that X-ray report is false and no fracture has been caused to the complainant.
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24. As far as, another version put forth by the accused that no injury was caused to PW-3 on the left ears rt and he was hard of hearing since childhood, accused produced two defence witnesses namely Shri Balak Ram DW-1 and DW-2 Rajinder Singh. DW-1 stated that he knows the complainant-PW-3, as he is a co-villager. He also stated that brother of PW-3 is serving in Civil Hospital, Theog in the X-
ray department and he (DW-1) used to work in the house of the complainant, who is hard of hearing since his birth. But admittedly, in the present case, no evidence whatsoever has been placed on record by the accused to substantiate their plea that PW-3 was suffering from the loss of hearing since his birth. Mere statement of DW-1 to the effect that PW-3 is hard of hearing since his birth cannot be relied upon that too in ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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the absence of some medical evidence. It has specifically come in the prosecution evidence that PW-3 was given .
beatings on the left ear, as a result of which blood was oozing out, which was seen by PWs 4 and 5.
25. In the present case, Sher Singh was another eye witness, whose statement could not be recorded before the of learned trial Court for want of correct address and, as such, no adverse inference can be drawn from his absence rt because admittedly, there is no material brought on record to suggest that prosecution purposely with a view to hide the truth, has not examined Sher Singh. Though, the testimony of PW3-complainant is itself sufficient to hold the guilt of the accused that they have actually given beatings to the complainant. But there is another eye witness PW-4 Indira Devi, daughter of the complainant, who has categorically confirmed the assault on the complainant by the accused, which leaves no doubt in the mind of Court that beatings were administered on the person of the complainant-PW-3 by the accused. Another defence witness, Rajinder Singh appeared as DW-2, who testified that Yog Raj is the brother ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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of the complainant-injured but nothing material emerges from his statement from where it can be inferred that X-ray .
report was actually manipulated by PW-3 complainant and as such, it cannot be concluded that X-ray was fabricated.
26. There is another fact that complainant has been very very diligent while lodging the complaint in the Police of Station. It is ample clear from the record that on 4.6.1995 at around 7:30am incident took place and at around 9am, rt complainant was taken to Police Station Theog and it is diarized in daily diary report No. 4 Ext.PW-2/A. Aforesaid lodging of report by PW-3 within two and half hours of the alleged incident itself compels this Court to infer that the incident, put forth by the prosecution, is trustworthy because, there was no occasion for the complainant as well as police to make any manipulation in the record, if any.
27. Though, accused in their statement under Section 313 Cr.PC have denied the injuries caused on the person of PW-3-complainant by them, specific stand was taken by them that injuries were caused due to fall on the path which indicates that they were actually aware of the ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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injuries caused to the complainant, which they specifically claimed to be caused due to fall on slippery path. These .
aforesaid defences taken by the accused coupled with the ample overwhelming evidence on record goes to suggest that beatings were given by the petitioners-accused to the complainant resulting in grievous injuries on the person of the of complainant. It also stands proved on record that accused had come at the spot of occurrence when signal by way of rt clapping was given and thereafter, both the co-accused turned up to accompany the petitioner No. 1 Inder Dutt. This aforesaid fact has been categorically stated by the complainant in the police report as well as in the statement before the Court, which has been further corroborated by the statement of PW-4, where she categorically stated that Raghuvir Singh was irrigating the fields and he suddenly threw pipe and went towards the water tank, meaning thereby, there was prior plan or prior meeting of mind of the accused to give beatings to PW-3. Hence, it stands proved beyond reasonable doubt that all the accused had common intention and in furtherance of that common ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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intention, they gave beatings to the PW-3, which fact stands proved on record by the statement of prosecution witnesses .
as well as medical evidence on record.
28. Mr. D.N. Sharma, learned counsel appearing for the petitioners prayed that accused may be given the benefit of probation under Section 4(b) of the of Probation of Offenders Act, 1958 keeping in view their ages and being first offenders. Moreover, accused Inder rt Dutt is aged about 43 years and has family to support.
He is having two school going kids (one daughter and son) and his mother is 62 years old, who is a cancer patient (last stage). His father Daulat Ram (co-accused) has four sons (including Inder Dutt) and four daughters.
His mother is blind, bed ridden and 94 years old. Other co-accused namely Raghubir is aged about 46 and 43 respectively, who has school going daughter and son, if at this stage, the accused are convicted, their families shall have to face the humiliation in the village/society.
He also stated that mitigating circumstance in this case is ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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that more than 13 years have passed after passing of the judgment dated 13.11.2003, whereby the accused .
were convicted and they have already suffered agony during the pendency of the appeal in the court of learned Additional Sessions Judge as well as in High Court of Himachal Pradesh. In support of the aforesaid of arguments, Mr. Sharma, also invited the attention of this rt Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 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 ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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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 of such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed rt 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.
29. Consequently, in view of the aforesaid discussion made herein above, this court has no hesitation to conclude that courts below have rightly appreciated the evidence available on record. Hence the judgments passed by the courts below are upheld. However, at this stage, keeping in view the facts and circumstances narrated in para (supra), this court is of the opinion that benefit of ::: Downloaded on - 15/04/2017 20:25:34 :::HCHP
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Section-4 of Probation of Offenders Act, 1958, can be extended in favour of the petitioners. Accordingly, Registry is .
directed to call for the report of the Probation Officer, Shimla, HP, within two weeks. Registry to list this matter on 17th June, 2016.
of
24th May, 2016 (Sandeep Sharma),
manjit Judge.
rt
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