Himachal Pradesh High Court
Gopal & Ors vs State Of H.P on 6 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A. No. 332 of 2006 .
Reserved on: 01.05.2019 Date of decision: 06.05.2019.
Gopal & Ors. .....Appellants.
Versus
State of H.P. ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Vinay Thakur, Advocate.
For the Respondent: Mr. Vinod Thakur and Mr. Sudhir Bhatngar, Addl. A.Gs.
with Mr. Bhupinder Thakur, Dy.
A.G. and Mr. Ram Lal Thakur, Asstt. A.G. Tarlok Singh Chauhan, Judge Aggrieved by the order of conviction and sentence passed by the learned Special Judge under Sections 325, 323 and 506 of the Indian Penal Code (for short 'Code'), the appellants have filed the instant appeal.
2. All the appellants were made to face trial for the offence under Sections 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (for short 'Act') read with Sections 323, 325 and 506/34 of the Code for insulting and humiliating complainant Lalit Kumar, a member of Scheduled 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 2 Caste community, on caste line and also causing grievous hurt and for giving threats of life to the complainant on 02.08.2002, .
at about 5:30 p.m., at village Rehlar, police station Karsog, District Mandi, H.P.
3. The story of the prosecution is that complainant Lalit Kumar (PW7) as well as Sohan Lal (PW4), on 02.08.2008, at about 5:00 p.m. was going to the jungle for grazing cattle through village Dugaun.
By the side of public path in village Dugaun there is a house of the accused Gopal Verma, who alongwith co-accused Dassi Devi, Geeta Ram and Anjana blocked the passage and started abusing the complainant and stated that the passage is not meant for the complainant. In the meanwhile, accused Gopal Verma caught hold the complainant from neck and brought him down to the ground. Accused Dassi Devi and Anjana assaulted the complainant with danda and fist blow. Geeta Ram also abetted them to give more beatings to the complainant, as a result of which he suffered injuries on his neck and other parts of the body. In the meantime, Geetanjali and Hemraj came to the spot on hearing cries of the complainant, it is then the appellants let loose the complainant and by leaving the place threatened to kill the complainant at any time in future. This incident was alleged to have been witnessed by Khem Raj, Dinesh Verma and Hemant Verma.
::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 34. The complainant was thereafter taken by Geetanjali (PW-8) and Hemraj (PW-9) to his home and he alongwith .
Hiramani, Geetanjali and Rajender Kumar went to Police Post Suni and reached there at about 6/6:30 p.m. However, the police was reluctant to register the case against the accused and was pressurizing the complainant to compromise the case with the accused. Consequently, an agreement (Ext.PO) was written by Ishwar Dass on a stamp paper, which was brought by PW-12 Dharmender from the shop of Gopal Dass. After writing Mafinama (Ext. PO) Dushyant Verma, brother of accused Gopal came on the spot and asked the accused as to why he has entered into Mafinama/agreement. Though accused Gopal Dass Verma gave assurance that he would bear the expenses of his treatment in the hospital. However, on the next day Gopal Verma did not turn up, as a result of which Lalit Kumar lodged the FIR Ext.PS in police station Karsog.
5. Dr. Satish Kumar (PW-2) on 03.08.2002 examined the complainant and found abrasions and bruises etc. on the neck of the complainant. X-ray was also done in CHC, Karsog vide Ext.PB and the doctor after examination issued MLC Ext.PC/1. The complainant was referred to zonal hospital, Mandi for expert opinion. Thereafter, Dr. D. K. Arora (PW-3) of Zonal Hospital, ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 4 Mandi, examined the X-ray films Ext. PC and Ext. PD and found that there was no fracture in the X-ray done in CHC, Karsog.
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6. H. C. Parshotam Ram (PW-15) on 05.08.2002 took over the investigation of the case and visited the spot. He prepared the spot map Ext.PP and recorded the statements of Hem Raj (Ext. PR) and Dinesh Kumar (Ext. PQ). During investigation, the complainant, Lalit Kumar produced his undervest Ext.P2 and Shirt Ext.P3 which were taken into possession by the I.O. vide memo Ext. PF. Thereafter, the case file was handed over to the Deputy Superintendent of Police Prem Chand Thakur (PW-18).
7. Prem Chand Thakur (PW-18) verified the investigation already conducted by HC Purshotam Ram on 20.09.2002 and at that time Section 3 of the Act was introduced in the case. He also took into possession Mafinama Ext. PO vide seizure memo Ext. PN as the same was produced by the complainant Lalit Kumar. He further took into possession abstract of register Ext.PS from Gopal Dass Verma and recorded the statements of witnesses. The police took into possession pedigree table Ext.PH and caste certificate Ext.PJ which show that the accused are Rajputs by caste whereas complainant is Luhar by caste.
::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 58. Thereafter, SHO Nain Singh (now deceased) prepared a challan and filed the same in the Court of Sub Divisional .
Magistrate, Karsog, who after supplying the copies of challan to the accused committed the case to the learned Special Judge as the offence under Section 3 of the Act was exclusively triable by the learned Special Judge.
9. Thereafter charges came to be framed against the accused, who pleaded not guilty and claimed trial.
10. The prosecution in support of its case examined as many as 18 witnesses. Thereafter, the accused were examined under Section 313 Cr.P.C. where they denied most of the such circumstances and claimed to have been falsely implicated but did not lead any evidence in their defence.
11. The learned Special Judge acquitted the accused of the offence under Section 3 of the Act, however, proceeded to convict and sentence the accused/appellants as under:-
Under Section 325 IPC Imprisonment for 2 years and fine of Rs.1000/- in default to undergo S.I. for 2 months.
Under Section 323 IPC Imprisonment for 6 months and fine of Rs.500/-, in default to undergo S.I. for 1 month.
Under Section 506 IPC Imprisonment for 6 months and fine of Rs.500/-, in default to undergo S. I. For 1 month.
All the sentences were directed to be run
concurrently.
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6
12. Aggrieved by the judgment and conviction and sentence passed by the learned Special Judge, the appellants .
have filed the instant appeal.
13. It is vehemently argued by Shri Vinay Thakur, Advocate, that the learned Special Judge has erred in convicting the appellants on the basis of the so-called evidence, which was improbable, discrepant and totally insufficient to prove the case against the appellants. It is further argued that no case under Section 325 of the Code was made out against the accused and the allegations as set out against them were highly improbable.
14. On the other hand, Shri Ram Lal Thakur, learned Deputy Advocate General, would vehemently argue that since there is no perversity in findings recorded by the learned Special Judge, therefore, its findings should not be disturbed.
I have heard learned counsel for the parties and have gone through the material placed on record.
15. At the outset, it needs to be noticed that though the judgment passed by the learned Special Judge runs into 41 paragraphs but the discussion with regard to the offences for which the appellants have actually been convicted is to be found in 5 paragraphs from paras 35 to 39. As a matter of fact, the learned Special Judge has hardly discussed the evidence that has ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 7 come on record, more particularly, the evidence relating to the offence under Section 325 of the Code.
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16. The only reason put-forth for convicting the appellants under Section 325 of the Code, is the opinion of the Medical Board, which according to the learned Special Judge was required to be given due weightage as the Medical Board has categorically found that the complainant has fracture in the right hand. Admittedly, the complainant at the first instance was examined by Dr. Satish Kumar (PW-2) and had noticed abrasion and bruises on his neck and have further noticed that there was swelling in the hand of the injured. After examination, he issued MLC Ext. PC and further advised X-ray, which was done at CHC Karsog and the complainant was referred to Zonal Hospital for expert opinion on X-ray Ext. PB. Dr. D. K. Arora (PW-3) had examined X-ray films Exts. PB & PD and gave his opinion that there was no fracture in the X-ray done at CHC, Karsog. It is only later on when the X-ray was done at IGMC, Shimla, on 19.08.2002, a fracture was noticed. In cross-examination, this witness clearly stated that fracture could have been sustained by the complainant after 03.08.2002.
17. Since, there was conflicting opinion in the X-ray reports, therefore, an application was moved by the Investigating Agency for constitution of Medical Board for opinion on the two ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 8 different X-ray films of the hand of the complainant, taken in CHC, Karsog and IGMC, Shimla and accordingly Medical Board of .
the following was constituted:-
1. Dr. P. K. Soni (Radiologist)
2. Dr. J. P. Kaushik (Radiologist)
3. Dr. D. K. Arora (E.N.T. Surgeon) The final opinion of the doctors reads as under:-
1.
rMandi.
Opinion of Dr. P. K. Soni (Radiologist), Z.H.,
1. The X-ray No. Nil Dt. 02.08.2002 done at CHC, Karsog shows no Cortical break and transverse translucent line is seen at 1 st Metacarpal base- suspected fracture.
2. The X-ray dated 19.08.2002 of IGMC, Shimla shows Fracture 1st Metacarpal base in part X-rayed.
2. Opinion of Dr. J. P. Kaushik (Radiologist), Z.H. Mandi.
1. The X-ray of Sh. Lalit Kumar, which was done at C.H.C. Karsog. There is doubtful feature at the base of Metacarpal.
2. The X-ray of Sh. Lalit Kumar which was done at IGMC, Shimla on 19.08.2002 there is clear cut fracture of the base of 1st Metacarpal.
3. Opinion of Dr. D. K. Arora (E.N.T.) Surgeon ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 9
1. It is very difficult for me to give opinion for the X- ray which was done at CHC Karsog on 03.08.2002 as .
I am not expert in radiology.
But the X-ray of IGMC, Shimla, 19.08.2002 shows evidence of fracture base of 1st Metacarpal.
18. From the different opinions of above three doctors, who comprised the Medical Board, it is clear that X-ray taken at IGMC, Shimla was a clear cut fracture whereas the X-ray taken at CHC, Karsog shows doubtful fracture.
19. Evidently, even the Medical Board have not doubted the veracity of the X-ray conducted at CHC, Karsog and have opined that there was a doubtful fracture at the base of the 1 st Metacarpal. The X-ray at CHC, Karsog was admittedly done on 03.08.2019 itself whereas the X-ray at IGMC, Shimla was done after more than a fortnight on 19.08.2002.
20. The dates assume importance because even as per the expert opinion it has not been proved that the X-ray conducted at CHC, Karsog Ext.PB was not in any manner wrong much less tampered with.
21. PW2 Dr. Satish Kumar, in his cross-examination had clearly stated that all the injuries could be possible by fall and could also be caused in a scuffle, but more importantly, he categorically stated that the injuries could also be self-inflicted.
::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 1022. There is no evidence whatsoever to prove that the fracture that was noticed for the first time by the doctor at IGMC, .
Shimla, on 19.08.2002, was, in fact, attributable or a result of the beating alleged to have been given by the appellants/convicts. In case, the complainant had, in fact, sustained fracture then why he kept mum from 02.08.2002 to 19.08.2002 is not at all forthcoming.
23. Therefore, in such circumstances, the learned Special Judge appears to have been un-necessarily swayed by the fact that since the Medical Board constituted of senior doctors, so it was proved that the appellants had committed the offence under Section 325 of the Code.
24. As regards the conviction of the appellants under Section 323, 506 and 34 of the Code, I really do not find any perversity in such findings of the learned Special Judge in view of the overwhelming evidence that has come on record.
25. In this background, it would be necessary to refer to the statements of the complainant and the alleged eye-
witnesses Geetanji Bhardwaj (PW-8) and Hemraj (PW-9).
26. The complainant Lalit Kumar appeared as PW7 and stated that on 02.08.2002, he alongwith Sohan Lal was going to Jungle for grazing cattle. Gopal Verma, Dassi Devi, Geeta Ram and Anjana blocked the passage and started abusing him and ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 11 said that the road was not a common passage. Gopal Verma caught him on the neck and put him on the ground whereas it .
was Dassi Devi and Anjana Devi, who assaulted him with danda and fist blows. Geeta Ram also joined them by giving more beatings to him, as a result whereof he suffered injuries on the neck as well as on the back. Gopal Verma gave beatings to him with stones in his hand, as a result whereof, there was swelling in the hand. Sohan Lal left the place out of fear. In the meantime, Geetanjali and Hemraj came there on hearing his cries and rescued him from the clutches of the accused. Gopal Verma, while leaving place, again threatened that he would kill him (PW-
7) in future. Khem Raj Verma, Hemant Verma and Hemant were also present and witnesses to the incident. Geetanjali and Hem Raj took him to his home and thereafter they alongwith Hiramani, Geetanjali and Rajinder Kumar went to police post Suni, where they reached about 6/6:30 p.m. However, the police did not register the case and asked him to compromise the matter with the accused. Thereafter an agreement was written by one Ishwar Dass on a stamp paper which was brought by Dharmender from the shop of Gopal. Ishwar Dass wrote the Mafinama and accused Gopal Verma confessed in the said Mafinama and also gave assurance not to repeat such incident in future. Mafinama was also signed by Harish Verma and ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 12 Dharmender but was not signed by this witness. After writing the Mafinama, Dushyant Verma, brother of the accused Gopal Verma, .
came to the spot and asked the accused as to why they had entered into Mafinama. On that day, Gopal Verma assured the this witness that he would bear the expenses of his treatment in the hospital. However, on the next date, Gopal Verma did not turn up, constraining him to register FIR in Police Station, Karsog Ext.PF. Next day, he was examined by doctor in hospital at Karsog, who opined that this witness had not suffered fracture in the hand. However, when he visited IGMC, Shimla, the doctors told him that he had fracture in his right hand and applied plaster for six weeks. Even this witness was examined at length, however, he did not retract or budge from the version put-forth.
So far as sustaining of injuries is concerned, he could not prove that he had given beatings by a danda blow.
27. Geetanjali Bhardwaj, who was witness to this incident, appeared as PW-8, and stated that on 02.08.2002 at about 4:30 p.m. she was going alongwith Hemraj and when they reached the place Dagaun, she found that accused No. 1 alongwith Dassi Devi, Anjana Devi and Geeta Ram were giving kick and fist blows to Lalit Kumar. This witness was also cross-
examined at length but again the version put-forth by him could not be shattered in the cross-examination.
::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 1328. Likewise, PW-9 another eye witness Hemraj also deposed on the similar line by stating that on 02.08.2002 at .
about 4:35 p.m. he was going to Jungle to graze cattle and Geetanjali (PW-8) accompanying him. When they reached near the house of Gopal Verma, he saw Gopal Verma was giving beating to Lalit Kumar. Later on, Gopal was joined by Dassi Devi and Anajana, who started giving beating to Lalit Kumar.
Thereafter, he left the spot and informed his uncle regarding the said incident. Even his statement could not be shattered in the cross-examination.
29. Apart from the above, it would be noticed that the accused was examined by Dr. Satish Kumar (PW-2) in Civil Hospital, Karsog and observed the following injuries on his person:-
1. Two abrasions over right side of neck.
2. Bruise over left side of neck.
3. One bruise over left supra clavucular fossa.
30. This witness further observed that there was swelling in the right hand and on examination tenderness over the same could be seen. This witness was not cross-examined qua injuries and the only question put-forth by the accused/appellants was that as to whether the injuries could be sustained by fall to which the doctors answered in positive. He also deposed in his cross-
::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 14examination that the injuries could be caused by scuffle also and at the same time the injuries could be self-inflicted.
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31. At this stage, it is relevant to point out that there is no evidence whatsoever worth the name to even remotely indicate that the version put-forth by the victim/complainant regarding his having been administered beatings by the accused/appellants is in any manner false or doubtful. Once that be so, then obviously no fault can be found in the findings rendered by the learned Special Judge and the sentence imposed by the learned Sessions Judge while convicting the appellants under Sections 323, 506 and 34 of the Code.
32. Having said so, I really do not find any merit in this appeal so as to call for any interference with the impugned judgment of conviction and sentence,however, learned counsel for the appellants would submit that the incident in question had taken place 16 years back and at that time appellant No. 3 Anjana Devi was barely 18 years, whereas appellant No. 2 was 65 years of age and the appellants have already faced the pangs and suffered agony of protracted trial. Therefore, a lenient view may be taken or else they shall be stigmatized in case they are sentenced.
33. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 15 without sureties, on probation when he/she is found guilty of committing any offences not punishable with death or .
imprisonment for life. Relevant portion of Section 4 is reproduced as under:-
"4.Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."
34. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 16 under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may" which .
clearly indicates that the discretion vested with the courts whether to release the offender in exercise of the power under Sections 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all the circumstances of the case. The powers under Section 4 of the Act vest with the court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the courts while finding the person guilty and if the courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is available and can be exercised by the court even at the appellate stage.
35. Having regard to the rival contentions of the learned counsel for the parties, and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the appellants for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2002 and (ii) the appellants have already ::: Downloaded on - 07/05/2019 21:58:42 :::HCHP 17 faced the pangs and suffered agony of protracted trial for more than 16 years.
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36. Even the modern trend of penology also leads to the reformation of the offender so as to make him/her useful citizen of the society. No useful purpose is otherwise going to be achieved by again sending the appellants to jail.
37. Accordingly, let the Probation Officer of the area concerned where the appellants permanently reside place before this Court his report(s) qua the antecedents of the petitioners on or before next date of hearing.
List on ______________ .
6th April, 2019 (Tarlok Singh Chauhan)
(sanjeev) Judge
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