IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 263 of 2002. Date of Decision:18.8.2011. _______________________________________________ State of H.P. ….Appellant. Versus. 1.Vishwajit alias Vishu, son of Sh.Biru resident of Mohalla Kasakra, Chamba Town, H.P. 2.Dinesh Kumar alias Kaka son of Sh.Parkash Chand, resident of village Mohalla Chameshni Chamba Town, H.P. 3.Sanjeev Kumar son of Biru, resident of Mohalla Kasakra Chamba Town, H.P. 4.Shiv Kumar @ Shibu, son of Sh. Jagdish Chand, resident of Mohalla Chameshni Chamba Town, H.P. . ….Respondents. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. No. For the appellant: :Mr. R.K.Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For Respondents: Mr.N.K.Thakur, Advocate. Dev Darshan Sud, J(Oral). This appeal has been preferred by the State convicting the respondents-Vishwajit, Dinesh Kumar, Sanjeev Kumar and Shiv Kumar only for offences under Sections 325 Whether reporters of the Local papers are allowed to see the judgment.yes. 2 read with Section 34 IPC and sentencing them to undergo imprisonment on various terms and challenging the acquittal of the accused for offences under Sections 307, 323,341 and 506 read with Section 34 I.P.C. as also the quantum of sentence which has been imposed upon them. 2. The prosecution case in brief is that on 13.1.1998 at around 11.30 PM, complainant Ashwani Kumar (PW1) had gone to the Chowgan Marhi to celebrate ‘Lohri’. When the persons present there had lit holi bonfire to celebrate the festival, Vishwajit @ Vishu, his younger brother Dinesh Kumar and Shiv Kumar attacked him and started beating Budhi Parkash, Ashok Kumar, Naresh Kumar brothers of the complainant and their uncle Manoj Kumar with ‘dandas’ (sticks). They were shouting that they will kill all of them. They were rescued by Harminder Bakshi (PW2) and Yoginder Chona with the help of some other people, who intervened and took the injured to the District Hospital, Chamba. They were medically examined there where the medical officer Dr. Praveen Sharma (PW8) opined that injuries No.4 and 5 on the person of Budhi Parkash were grievous and have been caused with blunt weapon and were dangerous to life. The prosecution produced eleven witnesses in support of its case. 3. Adverting to the evidence of PW1 Ashwani Kumar, he states that he knew the accused persons and on 13.1.1998 when ‘Lohri’ celebrations were in progress, at around 11.30 PM, he had gone to bed. Somebody knocked his door at that time and told him that his brother was being thrashed and 3 beaten up in the Chowgan ‘Marhi’ when he rushed to the spot he saw Budhi Parkash and Ashok Kumar were lying on the ground with blood oozing out from the injuries. He also stated that he saw the accused with smoldering logs in the hands and shouting that they would kill both Budhi Parkash and Ashok Kumar. He says that before reached the spot, Harminder Bakshi (PW2) and Parvinder Chona were present there and were trying to rescue his brothers. He was also told at that time that Naresh Kumar was also beaten up with sticks but he had gone to the hospital. When the assailants found that Budhi Parkash would not respond to any call, they ran away from the spot. He along with some other persons took both his brothers Budhi Parkash and Ashok kumar to District Hospital, Chamba. According to him, Budhi Parkash was unconscious and having injuries on his head. Ashok Kumar was injured on his arms and another parts of his body. According to him Budhi Parkash was referred to P.G.I. Chandigarh. His statement Ext.PA was recorded in the hospital. 4. PW2 Haminder Bakshi also states in his evidence that he knew the accused persons. On the date of the incident, he was coming from his Mohalla to Chowgan Marhi. When he reached there, he found that Budhi Parkash and Ashok Kumar lying on the ground and they were being beaten up with ‘dandas’ (sticks) by accused Kaka and Shibu. {He pointed out at Dinesh Kumar saying that he is known as Kaka}. A number of people had gathered there. He along with 4 Parvinder, Bhuvnesh and one Mehta intervened and rescued Budhi Parkash and Ashok Kumar from the clutches of the accused persons. He states that Budhi Parkash was unconscious and bleeding from his head. Ashok Kumar was also lying on the ground with multiple injuries. He did not know the reason as to why the fight had taken place. According to him, many people of Chamba town were present at the spot. The injured were shifted to the District Hospital. 5. PW4 Ashok Kumar states that on 13.1.1998 at around 11.30 PM, he came out of his house and proceeded towards the bazar. He saw some people engaged in an altercation. When he inquired the reason, he was rebuked and asked as to why he was intervening in the matter. Thereafter, he was set upon by the accused persons, who were armed with ‘dandas’ (sticks). Initially nobody intervened in the matter as the accused were mischief mongers and the people were afraid of them. His brother Budhi Parkash standing by his side intervened in the matter but he was also beaten up in the fight. PW5 Budhi Parkash corroborates the statement of his brother PW4 Ashok Kumar. He then says that he was taken to P.G.I. Chandigarh for further treatment. 6. PW8 Dr. Parveen Sharma, Medical Officer, District Hospital, Chamba, has examined the injured and he found that Budhi Parkash had fractures on the scull and 8th ribs which he opined to be serious injuries. In cross- examination he admits that PW4 Ashok Kumar and PW3 Manoj Kumar were heavily drunk and that Budhi Parkash is 5 working as Senior Assistant in the District Hospital, Chamba. On the evidence on record, the learned court holds that the factum of the presence of both the accused and the complainant was proved on the record. The weapons of offence were not recovered. No offence under Section 307 IPC was made out, as there is no intention either to cause death or to cause injury which is so eminently dangerous to the life. Offences under Sections 323 and 341 IPC were also not established on the record. They were convicted for offences under Section 325 read with Section 34 IPC and a lenient view was taken, where they were let off on imprisonment already undergone and fine of Rs.2,000/- each was imposed upon them. A sum of Rs.4,000/- was ordered to be paid to PW5 Budhi Parkash, a sum of Rs.2,000/- to PW4 Ashok Kumar and Rs.1,000/- to PW3 Manoj Kumar. 7. Learned Senior Additional Advocate General submits that the offences, for which the respondents have been acquitted, have been established on the record of the case. 8. Adverting to the provisions of Section 341, what we find is that there is no evidence on the record to establish the offence under Section 339 IPC to show that the complainants have been wrongfully restrained from proceeding in any direction. We do not find any merit in the submissions of the State that the offences as alleged have been established on the record of the case. 6 9. Adverting to the quantum of sentence, we find that the accused have been treated in a very lenient manner. The evidence on record leaves no doubt in our mind that it was drunken brawl. We see no justification as to why auto intoxication can be used as justification for assault. But then considering that the incident occurred in the year 1998, on the quantum of sentence, we direct that each of the accused shall be further liable to pay fine of Rs.7,000/- each. This amount shall be deposited by them in Court on or before 30th April, 2012. On such deposit being made, a sum of Rs.20,000/- shall be paid to the injured Budhi Parkash, Rs.5,000/- to injured Ashok Kumar (PW4) and Rs.3,000/- Manoj Kumar (PW3). In case of failure of the respondents herein to pay the enhanced fine amount, each of them shall undergo imprisonment for a period of one month each. The appeal is accordingly disposed of. Bail bonds furnished by the respondents are discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. August 18,2011(R)