Himachal Pradesh High Court
State Of H.P vs Rt on 8 August, 2016
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
Cr. Appeal No.98 of 2007.
Judgment reserved on:26.5.2016.
Date of judgment: August 8,2016.
of
State of H.P. ....Appellant.
Vs.
rt
Pawan Kumar and another. ..Respondents.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1? yes.
For appellant: Mr. R.K.Sharma Deputy Advocate
General.
For respondent: Mr.Dushyant Dadwal Advocate.
P.S.Rana, Judge.
JUDGMENT:Present appeal is filed under section 378 of code of criminal procedure 1973 against judgment of acquittal dated 27.3.2006 passed by learned Judicial Magistrate Ist Class Court No. III Hamirpur HP in case No. Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 290-II/2001 RBT No. 198-II/2004 title State of HP Vs. Pawan .
Kumar and another.
Brief facts of prosecution case:
2. Brief facts of case as alleged by prosecution are that on dated 3.5.2001 at about 11 AM at place Tikri of accused persons in furtherance of common intention caused simple hurt and grievous hurt to complainant Lashkari Ram.
It is alleged by prosecution that FIR Ext PW10/A was rt registered and spot map Ext PW10/B was prepared. It is further alleged by prosecution that stick Ext. P1 was took into possession. It is further alleged by prosecution that injured was medically examined by Dr. Naresh Sharma and MLC Ext PW2/A was issued. It is further alleged by prosecution that x-ray of injured conducted and x-ray films Ext P2 to Ext P4 prepared. Learned Trial Court framed charge against accused persons on 19.2.2005 under Sections 325 and 323 IPC read with section 34 IPC. Accused persons did not plead guilty and claimed trial.
3. Prosecution examined ten witnesses and also adduced documentaries evidence. Learned trial Court ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 3 acquitted accused persons qua criminal offence punishable .
under sections 325 and 323 read with section 34 IPC.
4. Feeling aggrieved against judgment passed by learned trial Court State of HP filed present appeal.
5. Court heard learned Deputy Advocate General of appearing on behalf of State and learned Advocate appearing on behalf of respondents and also gone through entire record carefully. rt
6. Following points arise for determination in present appeal:
1. Whether appeal filed by State under section 378 of code of criminal procedure 1973 is liable to be accepted as mentioned in memorandum of ground of appeal?.
2. Final order.
7.Findings on point No.1 with reasons:
7.1 PW1 Dr.P.C.Verma has stated that he was posted as Radiologist in zonal hospital Hamirpur on 5.5.2001 and he examined x-ray report of injured Lashkari Ram and observed that there was no fracture. He has stated that there was dislocation of left ring finger. He has stated that x-ray report is Ext PW1/A. He has admitted that there is difference ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 4 between fracture and dislocation. He has stated that .
dislocation could be caused by way of using force.
7.2. PW2 Dr. Naresh Sharma has stated that he was posted as medical officer in civil hospital Bhoranj. He has stated that he examined injured Lashkari Ram and found of following injuries. He has stated that injured complained of pain in the left ring finger. He has stated that on clinical examination the ring finger was deviated. He has stated that rt there was swelling and x-ray was advised. He has stated that there was lacerated wound 2.8 cm. x 0.5 cm over right side scalp over occipital region and same was bleeding. He has stated that injured also complained pain in right arm and on examination no external injury was observed. He has stated that as per opinion of Radiologist injury No.1 was grievous and injuries No. 2 and 3 were simple caused with blunt weapon. He has stated that probable duration of injury was upto six hours. He has stated that MLC is Ext PW2/A. He has stated that injury mentioned in MLC Ext PW2/A was possible by way of stick blows. He has stated that injury No. 2 and 2 are possible by fall on hard surface. He has denied suggestion that injury No.1 was possible by way of use of ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 5 force by two persons. He has stated that injury No.1 is .
possible by fall. He has stated that he remained posted at civil hospital Bhoranj for eight years.
7.3 PW3 Yash Pal Sharma has stated that he was posted as Radiographer in civil hospital Bhoranj since of 3.5.2001. He has stated that he conducted x-ray of film Ext P2 to Ext P4 and handed over x-ray films to investigating agency. rt 7.4 PW4 Vikas has stated that police officials came to his house and signature upon blank paper was obtained.
He has stated that nothing was recovered by investigating agency in his presence. Witness was declared hostile. He has denied suggestion that he was associated in investigation of present case. He has stated that he does not know the contents of seizure memo. He has stated that he is posted as junior clerk in Co-operative bank Bhoranj. He has stated that accused persons are his neighbourer. He has stated that investigating agency did not record his statement under section 161 Cr.PC. He has stated that he did not give statement from portion 'A' to 'A' of mark 'B' to investigating agency. He has denied suggestion that he has resiled from ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 6 his earlier statement in order to help accused persons. He .
has denied suggestion that accused persons are his relatives.
7.5 PW5 HC Des Raj has stated that he was posted as MHC in police station Bhoranj and he has brought rapat rojnamcha. He has stated that copy of Ext PW5/A is correct of as per original record.
7.6 PW6 Lashkari Ram injured aged 80 years has stated that civil litigation is under process between him and rt accused Pawan Kumar. He has stated that ad-interim injunction was granted against accused by civil Court and accused persons were raising construction forcibly. He has stated that he requested accused persons not to raise construction. He has stated that co-accused Pawan Kumar and co-accused Satya Devi inflicted injury upon his body by way of fist blows and stick. He has stated that accused persons inflicted stick blow upon his head and also caused injuries upon other parts of his body. He has stated that accused also twisted his left finger. He has stated that he was rescued by Brahami Devi and his wife namely Geeta Devi and he was also medically examined. He has stated that injury was inflicted with stick Ext P1. He has stated that ad ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 7 interim injunction was granted by civil Court qua khasra No. .
146. He has stated that contempt petition was also filed and Local Commissioner was also appointed. He has denied suggestion that khasra No. 143 is adjoining to khasra No.
146. He has denied suggestion that accused persons were of raising construction of house in their own land. He has denied suggestion that false MLC was obtained. He has denied suggestion that he did not sustain any injury. He has rt denied suggestion that he has filed false criminal case against accused persons.
7.7 PW7 Smt. Geeta Devi has stated that on dated 3.5.2001 at about 11.15 AM her husband requested the accused persons not to raise construction upon his land. She has stated that accused persons inflicted injury upon injured with fist blows. She has stated that accused persons also inflicted injury upon the head of injured with stick. She has stated that accused also twisted left ring finger of injured.
She has stated that injured was rescued by her and Brahami Devi. She has stated that injured Lashkari Ram became unconscious and thereafter criminal complaint was filed in police station Bhoranj. She has stated that injuries were ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 8 inflicted upon injured with stick Ext P1. She has stated that .
land of accused persons is adjoining to the land of injured.
She has denied suggestion that Brahami Devi did not come at the spot.
7.8 PW8 Brahami Devi has stated that on 3.5.2001 of at about 11 AM she saw that co-accused Pawan Kumar and complainant Lashkari Ram were quarrelling. She has stated that co-accused Pawan Kumar inflicted injuries upon head of rt injured Lashkari Ram with stick. She has stated that co-
accused Satya Devi mother of co-accused Pawan Kumar was also present at the spot. She has stated that Lashkari Ram injured fell on the ground and blood started oozing out from head of injured. She has stated that co-accused Pawan Kumar twisted the left ring finger of injured Lashkari Ram.
She has stated that injured was lifted by his wife Geeta Devi.
She has stated that police officials also came at the spot and her statement was recorded. She has stated that Suresh Kumar is her son. She has stated that Parkash Chand has filed civil suit against her and her son which is pending before Civil Judge (Sr. Division) Court No.II Hamirpur. She has denied suggestion that accused persons were ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 9 constructing cattle shed upon khasra No. 143. She has .
denied suggestion that she did not come at the spot.
7.9 PW9 Sarwan Singh has stated that he was posted as HHC in police station Bhoranj since 2001. He has stated that in his presence co-accused Pawan Kumar has of produced stick Ext P1 and the same was took into possession vide seizure memo. He has stated that he signed seizure memo Ext PW4/A. rt 7.10 PW10 ASI Shashi Pal has stated that he was posted as investigating officer in police station Bhoranj. He has stated that on 3.5.2001 criminal complaint was lodged by injured Lashkari Ram. He has stated that rapat rojnamcha Ext PW5/A was recorded. He has stated that medical examination of injured was conducted in civil hospital Bhoranj. He has stated that as per opinion of medical officer injured has sustained simple and grievous injuries. He has stated that site plan Ext PW10/B was prepared. He has denied suggestion that false case filed in collusion with injured.
8. Statement of accused persons recorded under section 313 Cr.PC. Accused persons have stated that due to ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 10 civil litigation false criminal case is filed against accused .
persons. Accused persons tendered in evidence local commissioner report Ext. D1.
9. Following documentaries evidence placed on record.(1) Ext PW5/A is the copy of rapat No.8 dated of 3.5.2001. (2) Ext PW10/A is FIR No. 78 dated 2.6.2001 registered under sections 325 and 323 read with section 34 IPC.(3) Ext. PW10/B is site plan. (4) Ext PW4/A is seizure rt memo of stick Ext P1.(5) Ext PW1/A is x-ray report. As per x-
ray report injured sustained fracture in left ring finger. (6) Ext PW2/A is MLC report of injured Lashkari Ram aged 80 years. As per MLC report injury No.1 is grievous in nature and injury No.2 is simple in nature. (7) Ext P2 to Ext P4 is x-
ray films. (8) Ext D1 is the demarcation report.
10. Submission of learned Deputy Advocate General that offence against co-accused Pawan Kumar is proved beyond reasonable doubt under section 325 IPC is accepted for reasons hereinafter mentioned. Injured Lashkari Ram aged 80 years has specifically stated that injuries were inflicted upon him with fist blows. PW6 Lashkari Ram has specifically stated that injury was also inflicted upon his ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 11 head through stick blow. PW6 Lashkari Ram has specifically .
stated in positive manner that eye witness namely Brahami Devi and Geeta Devi rescued injured from the clutches of accused persons. PW6 Lashkari Ram has stated in positive manner that co-accused Pawan Kumar twisted his left ring of finger which caused fractured. Testimony of PW6 Lashkari Ram aged 80 years is trustworthy, reliable and inspire confidence of Court. There is no reason to disbelieve rt testimony of PW6 Lashkari Ram.
11. Testimony of injured Lashkari Ram is corroborated by eye witness PW7 Geeta Devi. PW7 Geeta Devi who is eye witness of the incident has specifically stated that accused persons inflicted injuries upon injured with fist blow and stick upon the head of injured. PW7 Geeta Devi has stated that left ring finger of injured was twisted which caused grievous injury to Lashkari Ram. Testimony of PW7 Geeta Devi is trustworthy, reliable and inspire confidence of Court. There is no reason to disbelieve the testimony of PW7 Geeta Devi.
12. Testimony of injured PW6 Lashkari Ram is also corroborated by PW8 Brahami Devi who is eye witness of ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 12 incident. PW8 Brahami Devi has specifically stated that co-
.
accused Pawan Kumar inflicted injuries upon head of injured Lashkari Ram with stick blow and thereafter injured Lashkari Ram fell down on the ground and blood started oozing out from the head of injured. PW8 Brahami Devi has of stated in positive manner that co-accused Pawan Kumar twisted left ring finger of injured which caused fractured.
Testimony of PW8 Brahami Devi is trustworthy, reliable and rt inspire confidence of Court. There is no reason to disbelieve the testimony of PW8 Brahami Devi.
13. Testimony of PW6 Lashkari Ram, PW7 Geeta Devi and PW8 Brahami Devi is corroborated by testimony of medical officer PW2 Dr. Naresh Sharma. PW2 Dr. Naresh Sharma has specifically stated that he examined injured Lashkari Ram aged 80 years on 3.5.2001 at 1.15 PM. PW2 Dr. Naresh Sharma has specifically stated in positive manner that injured has sustained three injuries. (1) Injury upon left ring finger. (2) Injury upon right side scalp over occipital region 2.8 cm x 0.5 cm x 0.5 cm. and blood was also oozing out fresh from injured. (3) Pain upon right arm. PW2 Dr. Naresh Sharma has specifically stated that injury No.1 was ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 13 grievous in nature and injury No.2 was simple in nature.
.
Testimony of PW2 Dr. Naresh Sharma is also trustworthy, reliable and inspire confidence of Court. There is no reason to disbelieve the testimony of PW2 Dr. Naresh Sharma.
14. Testimony of injured is also corroborated by of testimony of PW3 Yash Pal who is Radiographer. PW3 has proved x-ray Nos. 36, 37 and 38 Ext P2 to Ext P4. As per x-
ray report injured sustained fractured in left ring finger.
rt Testimony of PW3 Yash Pal is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve testimony of PW2 Yash Pal.
15. Testimony of injured Lashkari Ram is also corroborated with documentary evidence i.e. MLC Ext PW2/A and x-ray films placed on record. The incident took place on 3.5.2001 at 11 AM and injured was immediately medically examined on dated 3.5.2001 at 1.15 PM vide MLC Ext PW2/A placed on record.
16. Submission of learned Deputy Advocate General appearing on behalf of appellant that offence under section 325 IPC is also proved against co-accused Satya Devi is rejected being devoid of any force for reasons hereinafter ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 14 mentioned. It is the case of prosecution that eye witness of .
incident are PW7 Geeta Devi and PW8 Brahami Devi. Court is of the opinion that testimony of eye witness Smt Geeta Devi and Brahami Devi are material for just decision of case.
Court has carefully perused the testimony of PW8 Brahami of Devi. PW8 Brahami Devi did not state anything about active role of co-accused Satya Devi. PW8 Brahami Devi has stated in positive manner that co-accused Pawan Kumar has rt inflicted injuries upon head of injured with stick blow. PW8 has specifically stated in positive manner that co-accused Pawan Kumar twisted left ring finger of injured when injured fell down upon ground. Hence it is held that there is no positive evidence against co-accused Satya Devi. It is held that acquittal of co-accused Satya Devi did not warrant any interference in view of testimony of PW8 Brahami Devi.
17. Submission of learned Advocate appearing on behalf of co-accused Pawan Kumar that Smt. Geeta Devi is wife of injured Lashkari Ram and her testimony cannot be relied and on this ground appeal filed by State be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that testimony of relative ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 15 witness should not be discredited simply on the ground that .
witness is relative of injured person if testimony of relative witness is trustworthy, reliable and inspire confidence of Court. In the present case testimony of PW7 Geeta Devi is trustworthy, reliable and inspire confidence of Court. It is of held that it is not expedient in the ends of justice to disbelieve the testimony of eye witness Geeta Devi simply on the ground that PW7 Geeta Devi is the wife of injured rt Lashkari Ram. See AIR 2016 SC 1015 title State of Punjab Vs. Suraj Parkash and another. See AIR 2016 S.C. 1160 title Sadhu Saran Singh Vs. State of UP and others.
18. Submission of learned Advocate appearing on behalf of co-accused Pawan Kumar that co-accused Pawan Kumar could not be convicted on the testimony of PW8 Brahami Devi because there is civil litigation between co-
accused Pawan Kumar and Brahami Devi is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that civil proceedings and criminal proceedings are two independent proceedings. It is well settled law that pendency of civil proceedings did not give licence to any person to commit criminal offence. In the ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 16 present case testimony of PW8 Brahami Devi is trustworthy, .
reliable and inspire confidence of Court. It is not expedient in the ends of justice to disbelieve the testimony of PW8 Brahami Devi who is eye witness of incident.
19. Submission of learned Advocate appearing on of behalf of co-accused Pawan Kumar that there is material contradictions between testimony of PW6 Lashkari Ram, PW7 Geeta Devi and PW8 Brahami Devi and on this ground rt appeal filed by State of HP be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. Court has carefully perused testimony of PW6 Lashkari Ram, PW7 Geeta Devi and PW8 Brahami Devi. There is no material contradiction in the testimonies of PW6, PW7 and PW8 which goes to the root of case. In the present case incident took place on 3.5.2001 at 11 AM and statement of prosecution witnesses recorded on 24.5.2005, 25.5.2005 and 8.8.2005 and 9.11.2005 after a gap of four years. It is well settled law that minor contradictions are bound to come in criminal case when testimony of eye witness is recorded after a gap of sufficient time. See C. 2010 (9) SCC 567 title C. Muniappan and others Vs. State of Tamil Nadu. See 1972 SC 2020 title ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 17 Sohrab and another Vs. State of M.P. See AIR 1985 SC 48 .
title State of U.P. Vs. M.K. Anthony. See AIR 1983 SC 753 title Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat. See AIR 2007 SC 2257 title State of Rajasthan Vs. Om Parkash.
See 2009 (11) SCC 588 title Prithu Chand and another Vs. of State of HP. See 2009 (9) SCC 626 title State of UP Vs. Santosh Kumar and others. See AIR 2009 SC 151 title State Vs. Saravanan and another. See AIR 1988 SC 696 title rt Appabhai and another Vs. State of Gujarat. See AIR 1999 SC 3544 title Rammi Vs. State of M.P. See 2000(1) SCC 247 title State of H.P. Vs. Lekh Raj and another. See 2004 (10) SCC 94 title Laxman Vs. Poonam Singh and others. See 2004 (7) SCC 408 title Dashrath Singh Vs. State of UP. See 2012 (10) SCC 433 title Kuriya and another Vs. State of Rajasthan.
20. Submission of learned Advocate appearing on behalf of co-accused Pawan Kumar that testimony of PW6 Lashkari Ram, PW7 Geeta Devi and PW8 Brahami Devi are not sufficient for conviction of co-accused Pawan Kumar is rejected being devoid of any force for the reasons hereinafter mentioned. As per section 134 Indian Evidence Act 1872 no particular numbers of witnesses are required for proof of any ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 18 particular fact. It is well settled law that conviction can be .
based upon the testimony of single witness in criminal case if testimony of single witness is trustworthy, reliable and inspire confidence of Court. See AIR 2010 SCW 4470 title Bipin Kumar Mondal Vs. State of West Bengal. See AIR 1973 of SC 944 title Jose Vs. State of Kerala. See Latest HLJ 2003 HP 541 titled State of HP Vs. Om Parkash.
21. Submission of learned Advocate appearing on rt behalf of co-accused Pawan Kumar that on the basis of demarcation report Ext D1 conducted in civil suit No. 407 of 1997 title Lashkari Ram Vs. Pritam Singh and others appeal filed by State be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. Court has carefully perused demarcation report Ext D1 placed on record relating to civil suit No.407 of 1997 title Lashkari Ram Vs. Pritam Singh and another. In the demarcation report Naib Tehsildar Bhoranj cum Local Commissioner has specifically stated that Pritam Singh and co-accused Pawan Kumar have illegally encroached khasra No. 146 measuring 0.0.03 sarsahi by way of retaining wall and bed of vegetable or flowers (Kayari) owned by injured Lashkari Ram. Demarcation report Ext D1 ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP 19 placed on record is not helpful to co-accused Pawan Kumar.
.
On the contrary demarcation report is against co-accused Pawan Kumar. In view of above stated facts it is held that learned Trial Court has committed grave illegality by way of acquitting co-accused Pawan Kumar in the present case. It is of held that acquittal of co-accused Bawan Kumar by learned Trial Court is perverse and is based upon non appreciation of oral as well as documentary evidence placed on record rt properly. In view of above stated facts point No.1 is partly answered in yes and partly answered in no.
Point No.2(Final order)
22. In view of findings on point No.1 appeal filed by State of HP is partly allowed. Acquittal of co-accused Satya Devi by learned Trial Court is affirmed and acquittal of co-
accused Pawan Kumar by learned Trial Court is set aside.
Co-accused Pawan Kumar is convicted under section 325 IPC. Now convict Pawan Kumar be heard on quantum of sentence on 2.9.2016.
(P.S.Rana), Judge.
August 8, 2016(R) ::: Downloaded on - 15/04/2017 20:58:59 :::HCHP