IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 373 of 2004. Decided on: July 21, 2011. ____________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Sanjay Kumar . …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondent : Mr. Naresh Kaul, Advocate. _______________________________________________________ SURINDER SINGH, J (oral): The State has challenged the acquittal of the respondent, for the offences punishable under Sections 452, 323, 324 and 506 of the Indian Penal Code, passed in Criminal Case No.166-II of 2001/ 1998, decided on 30th January,2004. 2. In short the prosecution case can be stated thus. On Ist August, 1997, at about 8.30 A.M., PW1 Ashok Kumar complainant, while checking the electric supply at the residence of PW2 Vijay Kumar, he was attacked with a knife by the respondent and Whether reporters of the Local papers are allowed to see the judgment? - 2 - sustained as many as six injuries. The injury No.3 was with a sharp edge and others by blunt weapon. The injuries were x-rayed. The final opinion was given by PW5 Dr. Puran Chand that all the injuries were simple in nature and injury No.3 has been caused with sharp edged weapon. He issued Medico Legal Certificate Ext.PW5/A. 3. The FIR was lodged by the injured on the same day. Police visited the spot and prepared site plan of the place of alleged incident. Blood stained undergarments were taken into possession vide memo Ext.PW1/B. Knife Ext.P3 was also recovered and taken into possession vide memo Ext.PW7/A, pursuant to the disclosure statement made by the respondent under Section 27 of the Indian Evidence Act. 4. During the course of the investigation, Police recorded the statement of PW2 Vijay Kumar and PW4 Veena Devi God-sister of the complainant, residing in the same vicinity. Ultimately, on completing investigation, the challan was presented in the Court for the trial of the respondent. 5. Respondent was accordingly charge- sheeted. He pleaded not guilty and claimed trial. To - 3 - prove its case, prosecution examined PW1 injured Ashok Kumar, PW2 Vijay Kumar and PW4 Veena Devi, both alleged eye witnesses, PW3 Suresh Kumar, a witness to the recovery of blood stained undergarments of the complainant, PW5 Dr. Puran Chand who had medically examined the complainant, besides examining the other official witnesses. 6. Respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. As per the trend of cross- examination conducted on behalf of the respondent, respondent took defence that the injured was nourishing enmity against him as he compelled him to do extra work in the factory. 7. During the trial, PW2 Vijay Kumar did not support the case of the prosecution, but however, PW1 Ashok Kumar and PW4 Veena Devi coupled with the statement of medical expert have supported the prosecution case. Learned trial Court did not believe the victim merely on the ground that PW2 Vijay Kumar turned hostile. Further the name of Veena Devi did not find mentioned in the statement of the - 4 - complainant recorded under Section 154 of the Code of Criminal Procedure, but the learned trial Court did not make even a singular reference as to why the statement of the victim was disbelieved. 8. Shri A.K.Bansal, learned Additional Advocate General vehemently argued that the injured was a competent witness and in the instant case, his testimony is duly supported by PW4 Veena Devi and also the medical evidence. 9. Contra, Shri Naresh Kaul, learned counsel for the respondent makes his submissions that it is a fabricated case against the respondent as the complainant harboured ill-will against the respondent. He also argued that PW2 Vijay Kumar, who was a star witness in the instant case did not support the case of the prosecution in any manner. He also ventilated that PW4 Veena Devi is a God-sister of the victim. She was confronted with her statement recorded under Section 161 of the Code of Criminal Procedure with respect to the weapon alleged to have been used, wherein it did not find mention. - 5 - 10. I have considered the rival contentions of the parties and have carefully and cautiously gone through the evidence on record. 11. Insofar as Veena Devi (PW4) is concerned, though she was confronted with her statement Mark-X recorded under Section 161 of the Code of Criminal Procedure with respect to the fact that she stated having seen the knife in the hand of the accused at the relevant time, which did not find mentioned in the statement aforesaid, but unfortunately, this portion of the statement has not been put to the Investigating Officer, thus remained unproved. Otherwise also in view of the categoric statement of the victim, no benefit can be given to the accused. 12. PW2 Vijay Kumar though turned hostile, but stated that the respondent was his immediate neighbour and was his colleague working in the same factory. Further that he had been visiting his residence occasionally, whereas, PW1 Ashok Kumar injured testified that on the day of alleged incident, there was no electricity at his residence, therefore, he went to the residence of his neighbour PW2 Vijay Kumar in order to find out whether there was electricity supply. - 6 - When he asked about it, Vijay Kumar told to switch on the button of electricity and find out. When he was doing so, the respondent Sanjay Kumar entered the room and attacked him with a knife and while doing so, accused proclaimed that he had been extorting him to do more work. He further stated that PW2 Vijay Kumar intervened and he pushed the respondent aside, simultaneously PW4 Veena Devi also came there. Thereafter respondent fled away. He was subjected to cross-examination, but no question was asked with respect to the incident. He denied that the injuries caused to him were because of the motor vehicular accident and the respondent was foisted in a false case. 13. Statement of the injured stands corroborated by PW4 Veena Devi. She stated that she noticed PW2 Vijay Kumar while running from his residence and told that respondent had attacked on Ashok Kumar with a knife. She also witnessed the respondent attacking the complainant with the knife. She got scared and revealed about this fact to the labourers of the factory. She identified the respondent during the trial of the case. She denied that being a - 7 - God-sister of the injured, she had given a false statement. 14. PW5 Dr. Puran Chand has stated that he had examined the injured-complainant on the same day. Injury No.3 was caused with sharp edged weapon, whereas other injuries with blunt weapon and proved MLC Ext.PW5/A. 15. On the critical examination of the aforesaid evidence, in my considered opinion, I find that the statement of the injured Ashok Kumar (PW1) is worth inspiring confidence and is duly corroborated by the statement of PW4 Veena Devi and medical evidence. There is nothing on record to show that the respondent was framed in a false case. The respondent also failed to probablise his defence. Learned trial Court did not give even a single reason for not believing the statement of the injured, which stand otherwise corroborated in material particulars, as stated above. Therefore, the impugned judgment of acquittal passed by the learned trial Court is perverse. Accused-respondent is held guilty for the offence punishable under Sections 452, 323 and 324 - 8 - of the Indian Penal Code, as such he stands convicted for the aforesaid offences. 16. Insofar as the sentence is concerned, Shri Naresh Kaul, learned counsel for the convict- respondent submitted that the alleged incident had taken place in the year 1997. The convict at the relevant time was aged about 30 years and was working in the factory. Now he has married and his minor female child is studying in sixth standard. His father is quite aged and the convict is only bread earner of the family, therefore, requested to release him by giving the benefit of Probation of Offenders Act. 17. Report of the Probation Officer was also called for and all these facts submitted by the learned counsel stand substantiated by this report. As per report, there is no criminal history to the credit of the convict. Presently he is working as a Painter in the local area and living in good environment and harmony, therefore, considering all the extenuating and exaggerating circumstances in the instant case, a chance is required to be given to the respondent- convict for his reformation. - 9 - 18. Therefore, considering entire facts of the case, convict is hereby ordered to be released on probation under Section 4 of the Probation of Offenders Act. He is directed to execute a bond to the satisfaction of the learned trial Court within three weeks in the sum of `10,000/- with one surety of the like amount in terms of Section 4 aforesaid, to maintain good behaviour and to keep peace for a period of one year. In addition, the respondent shall also deposit an amount of `2,000/- as compensation to be paid to the complainant, in the learned trial Court. The compliance be made within the period aforesaid, failing which it shall be recoverable as a fine. 18. The matter stands disposed of. Send down the records. (Surinder Singh), Judge. July 21, 2011. (Pds)