Himachal Pradesh High Court
State Of Himachal Pradesh vs Nes Ram And Others on 1 November, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 441 of 2008 Reserved On: 23.10.2018 .
Date of decision: 1.11.2018
State of Himachal Pradesh. ...Petitioner
Versus
Nes Ram and others. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Shiv Pal Manhans, Additional Advocate
General with Mr. R.P. Singh and Mr.Raju Ram
r Rahi, Deputy Advocate Generals.
For the Respondent: Mr.Sanjeev Kuthiala, Advocate.
Vivek Singh Thakur, Judge
This appeal has been preferred against the judgment dated 27.3.2008 passed by learned Sessions Judge, Kullu in Cr. Appeal No. 38/6, whereby after reversing the judgment of conviction and sentence passed by learned Judicial Magistrate, 1st Class, Manali on 1.12.2006 in Cr. Case No. 99-1/2006/16-II/2006, in case FIR No. 257/2005 dated 19.12.2005 registered in Police Station Manali under Sections 341, 323, 504, 506(2) read with Section 34 IPC, respondents have been acquitted.
2. Trial Court had convicted the respondents and sentenced to undergo simple imprisonment for a period of one month each and to pay fine of `200/- each under Section 341 IPC, rigorous imprisonment for a period of three months each and to pay fine of `500/- each under Section 323 IPC, rigorous imprisonment for a period of three months each and to pay fine of `500/- each under Section 504 IPC read with Section 34 IPC and rigorous imprisonment for a period of three months each and to pay a fine of `500/- Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 2 Cr. Appeal No. 441 of 2008 each under Section 506 IPC read with Section 34 IPC and for respective defaults in payment of fine, sentenced to further undergo simple imprisonment for a period of 7 days, 15 days, 15 days and 15 days each for all offences.
.
3. Brief case of the prosecution is that on 18.12.2005 at about 11:30 A.M., PW-2 Gautam Katoch was going from village Sarsai to his village on his Motor-Cycle No. HP-34-1916 along with his nephew PW-3 Thakur Dass as pillion rider. After covering a distance of about 150 yards, he was stopped and asked by respondents to take Nes Ram on his Motor Cycle. On refusal, Nes Ram caught hold the complainant from his neck and respondents Thakur Dass and Pana Lal gave him stick blows, which they were carrying in their hands, which resulted oozing of blood from his head and fainting of complainant. He gained conscious after some time and thereafter was taken to Police Chowki Patli Kuhal in car. During this incident PW-3 Thakur Chand had also received injuries. On the basis of statement made by PW-2 Gautam Katoch, daily diary report No. 14 dated 18.12.2005 was recorded in Police Post Patli Kuhal at about 11:45 P.M. Thereafter injured was taken to hospital and got medically examined from PW-1 Dr. Namrata Vidharthy. Report lodged by complainant was sent to Police Station Manali and on the basis of the same, FIR Ex. PW-6/A was recorded on 19.12.2005 at 7:00 A.M. During investigation MLC of complainant Ex. PW-1/A was obtained and site map Ex. PW-6/C was prepared, statements of witnesses were recorded and on completion of investigation, finding prima facie complicity of respondents in commission of offence, challan was presented in the court.
4. On conclusion of trial, respondents were convicted as detailed supra. In appeal preferred by respondents, they stand acquitted by learned Sessions Judge.
::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 3 Cr. Appeal No. 441 of 2008
5. Prosecution has examined six witnesses to prove its case, whereas after recording statements under Section 313 Cr.P.C., respondents have not chosen to lead any evidence in defence.
.
6. PW-2 Gautam Katoch and PW-3 Thakur Chand are spot witnesses. PW-1 Dr. Namrata Vidharthy examined injured PW-2 medically and issued MLC Ex. PW-1/A. PW-4 Roop Singh is witness to production of blood stained jacket by complainant to police, which was taken into possession vide memo Ex. PW-2/A, whereas PW-5 Diley Ram is witness to production of sticks Ex. P-2 and P-3 by respondents which were taken into possession vide memo Ex. PW-5/A. PW-6 H.C. Gangbir Singh is Investigating Officer.
7. PW-2 Gautam Katoch in his deposition in the Court has corroborated his statement recorded in DDR No. 16 Ex. PW-2/A. In his examination-in-chief as well as cross-examination, there is no material discrepancy or contradiction. PW-3 Thakur Chand has also corroborated the statement of PW-2 with respect to the manner in which the occurrence had taken place. There is nothing in cross-examination of these witnesses to impeach their veracity.
8. Time of occurrence, as stated by PW-2, is at about 11:30 P.M. In DDR Ex. PW-2/A, it is categorically mentioned in the beginning of DDR that PW-2 had approached Police Post at 11:45 P.M. As per MLC Ex. PW-1/A, PW-2 Gautam Katoch was medially examined at 12:45 A.M. As mentioned in MLC Ex. PW-1/A and also in deposition of PW-1 Dr. Namrata Vidharthy, lacerated wound over right frontoparietal region of scull with fresh bleeding was found on the person of PW-2 Gautam Katoch and duration of the injury has been mentioned within two hours. Meaning thereby that injury on the person of complainant was found to have been received after 10:45 A.M. Therefore, timing of occurrence and receiving the injury at that time has also ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 4 Cr. Appeal No. 441 of 2008 been corroborated by the medical evidence. The injury was found to have been caused with blunt weapon. Though, PW-1 Dr. Namrata Vidharthy in her cross-examination has admitted it to be correct that injury could have been .
caused by a fall on hard surface, however, no such suggestion was put to PW-2 Gautam Katoch or PW-3 Thakur Chand that injury was received by PW- 2 by way of fall on the hard surface. Finding of learned Sessions Judge that there is no mention of timing in the report lodged by PW-2 Gautam Katoch, is contrary to record. In report time has been mentioned as 11:45 P.M, which indicates the probable time of the incident and with the help of time mentioned in the MLC Ex. PW-1/A and probable timing of receiving injury mentioned in the said MLC, definitely proves the timing of incident beyond reasonable doubt.
9. PW-2 Gautam Katoch in deposition in the court has stated that respondent Nes Ram had only caught hold of his neck, whereas other respondents had given stick blows. PW-3 Thakur Chand has also stated so, but in different words. He has stated that on refusal of his uncle to carry third person on Motor Cycle, Pane Lal and Thakur Dass had hit his uncle with sticks, whereas third respondent Nes Ram had only scuffled with his uncle. There is no contradiction or discrepancy in the statement of these two witnesses on this count, rather they, corroborates each other and also the statement recorded in DDR Ex. PW-2/A. Therefore, finding of learned Sessions Judge on this count are also contrary to the record.
10. It is true that in the site map Ex. PW-6/C a shop of Dhani Ram, houses of Tek Ram and Gopi Nand have been shown situated on the side of road near the place of occurrence and PWs-1 and 2 have also admitted existence of these houses in their cross-examination. But the fact remains that suggestion was put to them that persons residing in these houses were coming out and going in at the time of incident, has been denied by the ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 5 Cr. Appeal No. 441 of 2008 prosecution witnesses. There is nothing on record suggesting that prosecution witnesses had deposed falsely about the presence of persons on the spot. The occurrence has taken place at 11:30 P.M. At that time, in .
normal course, residents of adjacent houses are not supposed to be in the road or outside their houses. Therefore, probability of witnessing the incident by those persons is negligible and thus non association of any person residing in these houses cannot be fatal for prosecution. It is suggested and admitted by PW-2 that in the Panchyat Bhawan there were lot of persons present at that time, as counting for Panchyat Elections was going on there. But the incident has not taken place in Panchayat Bhawan, but on the road at a distance of about 150 yards from village Sarsai, whereas counting was going on in Panchyat Bhawan of Gram Panchayat Halan. The suggestion that PW- 2 Gautam Katoch was opposing the presidential candidate Sarvdyal to whom respondents were supporting, has also been denied by PW-2.
11. PW-6 I.O. in his examination-in-chief has deposed that Suchet Katoch, was got medically examined by him and learned Sessions Judge has considered statement of this fact fatal to the prosecution. It is a fact that Suchet Katoch brother of PW-2 Gautam Katoch was accompanying complainant PW-2 at the time of making report in Police Post, Patli Kuhal. Statement of Investigating Officer is not to be read in isolation. In his deposition he has categorically stated that Gautam Katoch had lodged report Ex. PW-2/A in Police Post Patli Kuhal and at that time he was accompanied by his brother Suchet Katoch. He has stated that medical of injured, though name mentioned as Suchet Katoch, was got conducted. In rest of statement, he has no where stated that Suchet Katoch was injured, rather he has relied upon DDR Ex. PW-6/A, wherein report has been lodged by Gautam Katoch with respect to assault upon him and therefore, this discrepancy in statement of Investigating Officer with respect to name of person who was examined ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 6 Cr. Appeal No. 441 of 2008 medically is not fatal for prosecution, particularly when as per MLC Ex. PW- 1/A and deposition of PW-1 Dr. Namrata Vidharthy, it was Gautam Katoch who was taken by the police to doctor and was got medically examined. No .
question has been put to PW-1 suggesting that it was not Gautam Katoch who was medically examined, but someone else. Further Investigating Officer has not been questioned on this count, so as to enable him to explain his statement. Learned Sessions Judge has rejected the case of the prosecution on the ground that instead of injured Gautam Katoch, Suchet Katoch was got medically examined. Whereas, there is ample evidence on record to establish that it was Gautam Katoch, who was medically examined.
12. No doubt PW-4 Roop Singh is brother of injured PW-2 Gautam Katoch, who has witnessed the handing over of jacket Ex. P-1 to the police by his brother vide memo Ex. PW-2/A, but for that reason only, his statement cannot be discarded, unless there is something on record to impeach his veracity. Even it has not been suggested to this witness that he was deposing falsely in order to favour his brother. Only one question that no jacket was produced by his brother to the police was put to him, which was denied by him.
13. PW-2 Gautam Katoch in his examination-in-chief has deposed that respondents were standing on the road with sticks in their hands and in Ex. PW-6/C place of occurrence on spot 'A' has been shown on left side of the road. Learned Sessions Judge has considered it a discrepancy/contradiction in the statement of PW-2 and the site map Ex. PW- 6/C. PW-2 Gautam Katoch has not stated that occurrence has taken place in the middle of the road, but he is referring the presence of respondents on the road with sticks and manner of stopping him. Therefore, it is wrong to say that PW-2 Gautam Katoch has claimed that incident had taken place in the middle of the road. Rather his statement indicates the word (sarak ke beech) ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 7 Cr. Appeal No. 441 of 2008 on the road and not that the occurrence had taken place in the middle of the road.
13. PW-5 Diley Ram is witness to production of weapon of offence .
Ex. P-2 and Ex. P-3 by respondents Pana Lal and Thakur Dass taken in possession vide memo Ex. PW-5/A. However, in the Court he has denied such production of weapon of offence in his presence. He was declared hostile and in his cross-examination he has admitted that he and accused are residents of one village and Nes Ram respondent is well known to him, who is his friend and he had furnished surety bonds in favour of respondents- accused. He has admitted his signatures on recovery memo Ex. PW-5/A and further that police had not taken his signatures thereon forcibly. Then he has explained that he had also signed on blank paper with further statement that he used to sign on blank papers. However, thereafter he has further stated that except this paper, he had never signed on blank papers. It is settled law that statement of hostile witness is not to be brushed aside in toto and anything favourable of either party corroborated by other evidence on record may be taken into consideration. This witness has admitted his signatures on Ex. PW-5/A, wherein it is recorded that sticks Ex. P-2 and Ex. P-3 were produced by respondents Thakur Dass and Pana Lal. Even if, it is considered that no weapon of offence was either produced by respondents Pana Lal and Thakur Dass or recovered by the police, the same is not fatal to the prosecution case, as there is ample evidence on record, as discussed supra, to establish the prosecution case even in absence of weapon of offence. (See Tama alias Tamal Mal Vs. State of West Bengal (2007) 10 SCC 493).
14. There is nothing on record to discredit the prosecution story. The findings of learned Sessions Judge that there are two views possible in present case, is also contrary to the facts. From the evidence on record only one view has been established on record that respondents have committed ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP 8 Cr. Appeal No. 441 of 2008 the offence as alleged. Therefore, the impugned judgment of acquittal passed by learned Sessions Judge is set-aside and judgment of conviction passed by learned Judicial Magistrate, 1st Class, is upheld.
.
15. At this stage, it would be appropriate to consider the alternate plea of learned counsel for the respondents, wherein he has prayed that in case respondents are found to be guilty for commission of offence by this Court, benefit of Probation of Offenders Act be extended to them, as for the nature of offence committed by respondents, they were entitled for consideration to extend benefit of Probation of Offenders Act, but the trial Court has failed to do so.
16. Having regard to the circumstances of the case, including the nature of offence and the manner in which incident has happened, plea of respondents, for extension of benefit of Probation of Offenders Act to them, can be considered, instead of imposing substantial sentence. However, before doing so, it would be appropriate to call for report of concerned Probation Officer under the Probation of Offenders Act, 1958. Accordingly, Probation Officer, Manali is directed to submit his report with respect to respondents on or before 26th November, 2018. List on 29th November, 2018 for further orders on which date respondents are also directed to remain present in person.
(Vivek Singh Thakur), st 1 November, 2018 Judge.
(KRS) ::: Downloaded on - 02/11/2018 22:57:53 :::HCHP