Punjab-Haryana High Court
Ved Parkash & Anr vs State Of Haryana on 6 September, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.1154-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.1154-SB of 2003
Date of Decision:-6.9.2013
Ved Parkash & Anr.
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.N.S.Shekhawat, Advocate for the appellants.
Mr.Sagar Deswal, AAG Haryana for the State.
Mehinder Singh Sullar, J. (Oral)
The matrix of the facts & evidence, unfolded during the course of trial, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, as claimed by the prosecution, is that on 29.11.2001 at 8.50 P.M., appellants-convicts Vinod Kumar son of Chander Singh and Ved Parkash son of Mehar Chand (for brevity "the appellants") came to Police Station City Narnaul and lodged a report (Ex.PG) of assault against Satish Kumar and other persons. Thereafter, complainant C.Bijender Singh (PW5) (for short "the complainant") was deputed and he took appellant Vinod Kumar to Civil Hospital, Narnaul and after medico legal examination, as soon as, the complainant and appellant Vinod Kumar came out of the gate of hospital, in the meantime, appellant Ved Parkash met them under the influence of liquor and enquired from complainant C.Bijender Singh as to what offences are Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 2 made out on the basis of medico legal report. The complainant told him that nature of offences could only be ascertained after x-ray examination. At this, he (Ved Parkash) became angry and caught hold of C.Bijender Singh from his collar and asked appellant Vinod Kumar to catch hold of him. Thereafter, appellant Ved Parkash picked up a brick-bat and gave blows on his nose and face. Meanwhile, C.Rama Nand (PW7) came there and rescued C.Bijender Singh from their clutches. When he was busy in attending the complainant, then, both the appellants decamped from the place of occurrence. On the way, HC Dharampal (PW6) and HC Rajpal (PW10) met them near Jain Dharamshala. The complainant narrated the incident to HC Rajpal, who recorded his statement (Ex.PE) and sent it through HC Dharampal to the police station for registration of the case.
2. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 29.11.2001, the appellants with their common intention voluntarily caused grievous hurt and deter the complainant in discharge of his official duty as such public servant. In the background of these allegations and in the wake of statement (Ex.PE) of the complainant, the present criminal case was registered against the appellants, by means of FIR No.273 dated 30.11.2001 (Ex.PF), on accusation of having committed the offences punishable under sections 332, 333, 353 and 186 read with Section 34 IPC by the police of Police Station City Narnaul, in the manner depicted here-in-above.
3. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants to face the Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 3 trial for the offences in question.
4. Having completed all the codal formalities, appellant Ved Parkash was substantively charge-sheeted for the commission of offences punishable u/ss 333 and 353 IPC, whereas appellant Vinod Kumar was vicariously charge-sheeted u/ss 333 and 353 read with section 34 IPC. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court.
5. The prosecution, in order to substantiate the charges framed against the appellants, examined PW5 complainant C.Bijender Singh, who has deposed in the following terms:-
"On 29.11.2001 I was posted at Police Station City Narnaul. At that time my constablery Number was 463. On that day I took Vinod Kumar accused present in the court to General Hospital Narnaul for his medical examination. As per DDR No.32 dt.29.11.2001 lodged by Vinod Kumar regarding causing injuries to him. After his medical examination, I was returning along with Vinod and when we reached at the gate of general hospital Narnaul, Ved Parkash accused who was under the influence of liquor met us outside the gate of General Hospital Narnaul at about 11.30 P.M. Ved Parkash started abusing me by saying that I have not got Vinod Kumar properly medico-legally examined. I told him that the doctor had correctly conducted the MLR but Ved Parkash caught hold of me by my collar and gave a fist blow on my nose. He picked up a brick bat and gave a blow thereof on my nose and eyes. I was caught hold by Vinod and Ved Parkash gave me blows with brick bat. In the meanwhile, a patrolling party consisting of Ramanand constable and one employee of Home Guard came there. They intervened and saved me from the clutches of the accused. Seeing them, both the accused run away. Dharmpal HC also reached the spot and recorded my statement Ex.PE. It bears my signature. On the basis of the said statement FIR was recorded by Raghbir Parsad SI. The copy of the FIR is Ex.PF. I identify the signature of Raghbir Parshad SI as I have seen him writing and signing. I do not know what had happened thereafter."
6. Sequelly, PW7 C.Ramanand has also supported the statement Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 4 of the complainant and inter-alia maintained, on oath, that on 29.11.2001, he was on patrol duty in the area of Anaj Mandi and hospital road, Narnaul. When he reached near the Civil Hospital, then, he found that appellants Vinod Kumar and Ved Parkash were giving beatings to constable Bijender Singh (complainant), who was in police uniform. He rescued him. In the meantime, the appellants succeeded in running away from the spot. Thereafter, he hired a rickshaw and sent the complainant to the police station. On that day, PW6 HC Dharampal and PW10 HC Rajpal were present near Jain Dharamshala, Narnaul and the complainant met them. He reported the matter and HC Rajpal recorded his statement (Ex.PE). He made his endorsement (Ex.PE/1) and sent it to the police station, on the basis of which, formal FIR (Ex.PF) was recorded by SI Raghbir Singh. PW3 C.Mahesh Kumar visited and prepared the scaled site plan (Ex.PD) of place of occurrence at the instance of complainant with its correct marginal notes. PW4 C.Kimati Lal has delivered the special reports to the higher authorities in this case. PW8 SI/SHO Rajender Singh has partly investigated the case and arrested the appellants, who surrendered in the court of CJM on 13.12.2001. On 28.12.2001, on receipt of x-ray report (Ex.PC), he added the offence punishable u/s 333 IPC and recorded the statements of witnesses. He has also identified the signatures of Inspector Karan Singh on the final report u/s 173 Cr.PC. PW9 UGC Mahabir proved the DDR Nos.32 and 31 (Ex.PG & Ex.PH) respectively.
7. Likewise, the next to note is the testimony of PW10 HC Rajpal, who has maintained that on 29.11.2001, he along with HC Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 5 Dharampal was present near Jain Dharamshala, Narnaul, where the complainant met them in an injured condition. He was having injuries on his face and nose. He reported the matter. He (PW10) recorded his statement (Ex.PE) in this regard. He signed the same in token of its correctness and made endorsement (Ex.PE/1) and sent it to the police station, on the basis of which, the formal FIR (Ex.PF) was recorded. Thereafter, he took the complainant to Civil Hospital, Narnaul and moved an application (Ex.PA) for his medical examination. Then, he inspected & prepared the rough site plan (Ex.PJ) of the place of occurrence. He has testified his entire investigation.
8. Now adverting to the medical evidence, PW1 Dr.Rakesh Sharma, on police request (Ex.PA), on 29.11.2001 has medico legally examined complainant C.Bijender Singh (PW5), vide MLR (Ex.PB) and found the following injuries on his person:-
1. There was a contusion 2x1 cm reddish in colour on nose.
2. There was contusion 3 cm x 1 cm reddish in colour on the right side of the face 1 cm below the right eye.
3. There was a contusion 1 cm reddish on the left upper eye brow.
9. All the injuries were referred for x-ray. After examination of x-ray (Ex.PC) and x-ray films (Ex.PC/1 & Ex.PC/2), he opined that injury No.1 on the person of the complainant was grievous in nature with blunt weapon. PW2 Dr.A.K.Chhakar, Radiologically examined the complainant on 5.12.2001 and found fracture on nasal bone, by way of x-ray report (Ex.PC).
10. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 6 was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, they have denied the prosecution evidence in its entirety and pleaded false implication. They, in order to prove their defence, have tendered copies of DDR (Ex.DA and Ex.DB) in documentary evidence. This is the total oral as well as documentary evidence brought on record by the parties.
11. Taking into consideration the entire evidence brought on record by the prosecution, appellant Ved Parkash was substantively convicted & sentenced to undergo rigorous imprisonment (in short "RI") for a period of three years, to pay a fine of Rs.1000/- and in default thereof to further undergo RI for a period of three months for the commission of an offence punishable u/s 333 IPC. He was further sentenced to undergo RI for a period of six months u/s 353 IPC, whereas appellant Vinod Kumar was vicariously convicted & sentenced to undergo RI for a period of three years, to pay a fine of Rs.1000/- and in default thereof to further undergo RI for a period of three months for having committed an offence punishable u/s 333 read with section 34 IPC and to undergo RI for a period of six months u/s 353 read with section 34 IPC, by virtue of impugned judgment of conviction dated 23.5.2003 and order of sentence dated 26.5.2003 by the trial Court.
12. Aggrieved thereby, the appellants have preferred the instant appeal. That is how I am seized of the matter.
13. After hearing the learned counsel for the parties, going through the evidence on record with their valuable help and after considering the entire matter deeply, to my mind, the present appeal Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 7 deserves to be partly accepted in this context.
14. As indicated here-in-above, the appellant Ved Parkash was substantively convicted & sentenced u/ss 333 and 353 IPC, whereas appellant Vinod Kumar was vicariously convicted & sentenced with the aid of section 34 IPC. Section 333 postulates that "Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in that lawful discharge of his duty as such public servant, shall be punished therein." Section 353 IPC posits that "Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as public servant, shall be punished thereunder."
15. A conjoint and meaningful reading of these provisions would reveal that in order to invoke the pointed offences, it was the mandatory duty of the prosecution to produce the cogent and reliable evidence to prove that the appellants have voluntarily caused grievous hurt to a public servant in discharge of his official duty as such public servant and used the criminal force to deter him from discharging his official duty.
16. Above being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Court Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 8 and arises for determination of the instant appeal is, as to whether the prosecution was able to prove the indicated charges against the appellants or not ?
17. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the affirmative as the prosecution has proved that appellant Ved Parkash has voluntarily caused injuries to the complainant, while he was on his official duty as public servant.
18. As is evident from the record that appellant Vinod Kumar had reported the matter to the police that they were beaten up by Satish Kumar and other persons. His statement was recorded, vide DDR (Ex.PG). In pursuance thereof, the complainant took him to the hospital for medico legal examination. As soon as, they came out of the hospital, in the meantime, appellant Ved Parkash came there under the influence of liquor. The pointed altercation took place between him and the complainant. Thereafter, appellant Ved Parkash caused injuries to the complainant (PW5). He has categorically corroborated the initial version contained in his statement (Ex.PE) on all vital aspects of the matter of altercation and causing injuries to him by appellant Ved Parkash. PW7 C.Ramanand has also supported his statement and stated that the appellants were giving beatings to the complainant, who was in police uniform. He rescued him from their clutches. However, they succeeded in running away from the spot.
19. This is not the end of the matter. The testimony of complainant finds further corroboration from the medical evidence/MLR Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 9 (Ex.PB) as regards the injuries on his face and nose are concerned. He promptly reported the matter to the police. PW10 HC Rajpal has testified his investigation. PW HC Dharampal confirmed that the complainant met them in an injured condition near Jain Dharamshala, Narnaul. The chain of link evidence is complete by the statements of PW3 to PW6 and PW9. The evidence of PWs is cogent and reliable. They were cross-examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to the complainant injured/eye witnesses as to why they would falsely depose and implicate appellant Ved Parkash in this case. They gave a vivid, consistent and cogent version of the occurrence and supported the prosecution story on all vital counts. The mere routine denial by appellant Ved Parkash that he was falsely implicated by the complainant, outrightly deserves to be rejected in the absence of any cogent material on record in this relevant connection. Therefore, it is held that it stands proved on the record that appellant Ved Parkash had caused the injuries on the person of complainant with brick-bat.
20. Be that as it may, the evidence on record would reveal that initially, the present case was registered against the appellants u/ss 332 and 353 read with section 34 IPC. Subsequently, the offence punishable u/s 333 IPC was added on 28.12.2001 by PW8 SI/SHO Rajender Singh i.e. after one month of the occurrence. Although, on police request (Ex.PA), the complainant-injured was medico legally examined on 29.11.2001 by PW1 Dr.Rakesh Sharma, vide MLR (Ex.PB) and found Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 10 three injuries on his face and nose. On the same very day, all the injuries were advised for x-ray examination by him, but he was radiologically examined by PW2 Dr.A.K.Chhakar on 5.12.2001 i.e. after six days of the occurrence. He found the fracture of nasal bone. It remained an unfolded mystery that why the complainant was not radiologically examined on the same/next day of occurrence. If he suffered a fracture of nasal bone on 29.11.2001, then it is a matter of common knowledge that how an injured person having nasal fracture would dare to ignore the consequent severe pain and sleep over the matter for six days, particularly when he is a police officer. No explanation, muchless cogent, is forth coming on record in this relevant connection. Therefore, no implicit reliance can be placed on x-ray report (Ex.PC), which appears to have been manipulated and prepared after six days of the occurrence by the doctor at the instance of the police officials. If this x-ray report is excluded from consideration/evidence, then, it stands proved on record that appellant Ved Parkash had caused only simple injuries to the complainant. To this extent, the trial court appears to have gone legally wrong in this relevant direction. In this manner, the conviction of appellant Ved Parkash u/s 333 IPC deserves to be and is hereby set aside. However, he is convicted under section 332 IPC.
21. Now adverting to the vicarious liability of appellant Vinod Kumar, the prosecution claimed that he had just caught hold of complainant, whereas appellant Ved Parkash (main accused) repeatedly caused the injuries to him. Section 34 IPC escalates that "When a criminal act is done by several persons in furtherance of the common Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 11 intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
22. A plain reading of this provision would reveal that in order to attract section 34 IPC, there should be a positive evidence of indispensable of essential ingredients that the criminal act should have been done, not by one person, but more than one and doing of every such individual act cumulatively resulting in the commission of criminal offences and that too, should have been in furtherance of the common intention of all such persons and not otherwise.
23. Moreover, there should be a cogent evidence that the appellants had prior meeting of mind, pre-arranged plan or shared a common intention to commit the same very offence, which was committed by the main accused. Mere participation in the crime with others, ipso facto, is not a ground, much less cogent, sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only in that eventuality that one accused can be made vicariously liable for the acts and deeds of the other co-accused and not otherwise. This section does not by itself create any offence. It only lays down the principle of joint criminal liability. The common intention and pre-arranged plan must be anterior in point of time to commission of crime. When there is neither pre-concert nor meeting of minds, then, section 34 IPC is not attracted. The existence of a common intention amongst the participants in a crime is the essential element and a condition precedent for application of this Section. This matter is no more Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 12 res integra and is now well settled.
24. An identical question came to be decided by Hon'ble Apex Court in a celebrated judgment in case Anil Sharma & Ors. v. State of Jharkhand 2004(3) RCR (Criminal) 774. Having considered the scope of section 34 IPC, it was ruled as under (para 17) :-
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
25. Not only that, the same view was again reiterated by Hon'ble Supreme Court in case Jagannath v. State of M.P. 2007(4) RCR (Criminal) 274. It was also so held in case Suresh and another v. State of UP AIR 2001 Supreme Court 1344.
Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 13
26. Therefore, the epitome of evidence on record would suggest that the complainant took appellant Vinod Kumar to the hospital for medical examination in pursuance of his complaint. He was already with the complainant. As soon as, they came out of the hospital, in the meantime, suddenly, appellant Ved Parkash met them under the influence of liquor. Appellant Vinod Kumar was stated to have just caught hold of the complainant, whereas appellant Ved Parkash (main accused) repeatedly caused the injuries on his face and nose. No other specific role or any injury is attributed to appellant Vinod Kumar. There is not an iota of evidence on record, muchless cogent, even to suggest remotely that he had prior intention or pre-planning to inflict injuries to the complainant. In that eventuality, sharing of common intention by him (Vinod Kumar) to cause injuries to the complainant by appellant Ved Parkash did not arise at all under the present set of circumstances. Preceding on these premises, to my mind, it cannot possibly be saith that the appellants had pre-planned to cause injuries to the complainant. That means, all the indicated essential ingredients of section 34 IPC are deeply missing in this case. Thus, the ratio of law laid down by the Hon'ble Apex Court in Anil Sharma, Jagannath and Suresh and another's cases (supra) "mutatis mutandis" is attracted to the facts of the present case and is the complete answer to the problem in hand. Hence, the possibility of false implication of appellant Vinod Kumar by the police officials in this case cannot be ruled out, which entails the benefit of doubt and his acquittal.
27. In this manner, if all the facts & circumstances, oozing out from the evidence on record, as discussed here-in-above are put together, Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 14 then, to me, the conclusion is inescapable and irresistible that it stands proved on record that appellant Ved Parkash has caused simple pointed injuries on the face and nose of complainant and deterred him from discharging his official duty as such public servant. He is liable to be convicted and sentenced for the commission of an offence punishable u/s 332, instead of section 333 IPC. Consequently, the impugned judgment of trial Court to that extent is set aside and appellant Ved Parkash is acquitted of the charge u/s 333 IPC. Similarly, he is convicted for having committed an offence punishable u/s 332 IPC.
28. Likewise, taking into consideration the fact that appellant Ved Parkash has already suffered the pangs and agony of protracted trial and appeal for the last about 12 years. He has two minor children, old parents and there is no one in his family to look after them. There is no history of his previous involvement in any other criminal case. Therefore, to my mind, it would be expedient in the interest and justice would be sub-served if he is sentenced to undergo RI for a period of one year, to pay a fine of Rs.5000/- and in default thereof to further undergo RI for a period of one month on accusation of having committed an offence punishable u/s 332 IPC. However, his conviction and sentence u/s 353 IPC are maintained.
29. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
30. In the light of aforesaid reasons, the instant appeal is partly accepted. Consequently, the impugned judgment of conviction & order of sentence of appellant Vinod Kumar are hereby set aside. Having extended Arvind Kumar Sharma 2013.09.11 17:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.1154-SB of 2003 15 the benefit of doubt, he is acquitted of vicarious charges u/ss 333 and 353 read with section 34 IPC, whereas appellant Ved Parkash is also acquitted of the charge u/s 333 IPC. At the same time, he is convicted and sentenced for the commission of an offence punishable u/s 332 IPC. The impugned judgment of conviction & order of sentence are modified to the extent and in the manner indicated here-in-above. However, all the sentences shall run concurrently.
The Chief Judicial Magistrate is directed to secure the presence of appellant Ved Parkash forthwith and commit him to jail to serve out the remaining portion of his sentence.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
Sd/-
6.9.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No
Arvind Kumar Sharma
2013.09.11 17:26
I attest to the accuracy and
integrity of this document
Chandigarh