1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.18 of 2002 Date of Decision: December 5, 2008 _______________________________________________________ Shetan Singh. Petitioner. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? . yes For the appellant : Mr Subhash Sharma, Advocate. For the respondent: Mr J.S.Guleria, Law Officer. Surinder Singh, J (oral). The petitioner was convicted under Section 326 and 323 of the Indian Penal Code, by the learned trial court and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- for the offence punishable under Section 326 of the Indian Penal Code and was also sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- for the offence punishable under Section 323 of the Indian Penal Code. The learned trial court further ordered that if the amount is recovered, a sum of Rs.1,000/- be paid to the complainant, as compensation. Feeling dissatisfied by the impugned judgment of conviction and sentence, the petitioner filed an appeal Whether reporters of the Local papers are allowed to see the judgment? yes 2 No.26 of 2001, while dismissing his appeal on 11.2.2002, by the learned Additional Sessions Judge, reduced the sentence from 2 years to one year under section 326 IPC but fine amount was increased to Rs.3,000/- from Rs.1,000/- and also reduced rigorous imprisonment from six months to three months for the offence punishable under section 323 of the Indian Penal Code and the learned Appellate Court also ordered that out of the amount of fine, if recovered Rs.3,000/- shall be paid to the complainant. In this criminal revision petition the convict / petitioner also challenged the judgment passed by the learned Additional Sessions Judge, on the grounds that there were material contradictions in the evidence of the prosecution and further that the courts below did not appreciate the evidence on record in the right perspective. Shri Subhash Sharma, learned counsel for the petitioner has vehemently argued that the case against the petitioner stood not proved and the learned Additional Sessions Judge has also given too much importance to the statement of the complainant and his witnesses and wrongly appreciated the evidence. Contra, Shri J.S. Guleria, learned Law Officer has supported the impugned judgment passed in appeal and vehemently argued that no law point is involved in the present petition and there are concurrent findings of 3 facts of guilt of courts below and the courts below have already taken up a lenient view in the matter. During the pendency of this case, an application (Cr.M.P. No.585 of 2008) was moved seeking permission to compound the offences, on the ground that the complainant and the convict-petitioner being closed relatives in order to maintain the cordiality of their relationship, have settled the matter at their own level. Vide order dated 23.10.2008, this court only allowed the compounding of the offence under Section 323 of the Indian Penal Code. Since the offence under section 326 of the Indian Penal Code was non-compoundable, therefore, the request to compound the said offence was refused. However, it was kept open to see the effect of compromise, in case of his conviction for the offences aforesaid is upheld under section 326 of the Indian Penal Code. Precisely, the case of the prosecution has been that on 19.9.1996, there was an electrical complaint in the village, lodged by Ram Leela party. Complainant Jasbir Singh was an Assistant Lineman in Kungrath area. He had gone to rectify the electricity fault but after completion of work he happened to meet the convict- petitioner, who was drunk. He chased him on his way to his house and caught hold of him near its gate. The convict-petitioner is alleged to have bitten off his nose, chin and lips of the complainant. The injuries started profusely bleeding, as a result of which, complainant fell 4 unconscious. He was removed to Primary Health Centre, Kungrath. where he was given first-aid. Next day, a complaint Ex.PW1/A was addressed by him to the S.D.O. (A.E) Electricity, Sub-division Tahliwal. He forwarded his complaint to the police, thereafter FIR Ex.PW6/B was formally registered. The complainant was got medically examined by PW4 Dr. Suresh Kumar. He issued the Medico Legal Certificate Ex.PW1/B. The police took into possession wearing apparels of the complainant vide memo Ex.PW1/C and prepared the site plan Ex.PW8/A of the place of alleged incident. After completion of the investigation, the challan was presented in the court under Sections 326 and 323 of the Indian Penal Code against the convict- petitioner. Finding prima-facie a case against the convict- petitioner, he was charge-sheeted. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses. The petitioner was also examined under Section 313 of the Code of Criminal Procedure. His case was of denial simplicitor. He did not lead any evidence in defence. At the end of the trial, he was convicted and sentenced as aforesaid. The complainant PW1 Jasbir Singh has testified on oath that the petitioner started hurling the abuses to him when he had gone to rectify the electricity complaint on 19.9.1996 at about 9.30 p.m. Pradhan Dev Kiran 5 Joshi, Kaku Ram and Jaswinder, who were sitting nearby, warned the petitioner from hurling abuses. Thereafter, he started going on to his home. He (PW1) was chased by the petitioner and was given the beatings near his house and he had bitten off his nose and some portion of the flesh got struck in to his teeth and caused the injuries on his other parts of body because of beatings. . His wife, Pawan Kumar and Bhajno Devi reached the spot and relieved him from the clutches of the accused. Thereafter, he ran away from the place of incident. He was taken to the hospital and on 20.9.1996, he made a complaint Ex.PW1/A to his SDO. According to him, because of the biting on his nose he became permanently disfigured. PW2 Pawan Kumar and PW3 Meena Rani, wife of the complainant Jasbair Singh, have corroborated his version and nothing material could be extracted in their cross-examination by the convict/petitioner to doubt the version of the injured complainant. PW5 Bhajno Devi did not support the case of the prosecution, as such, she was declared hostile, but in her cross-examined conducted by the learned Public Prosecutor, she has corroborated the fact that at about 9.30 p.m., she had heard the noise. She further stated in her cross-examination conducted on behalf of the accused that the complainant was lying on the road and he was lifted from that place and taken to his house. Although she admitted in her tale-end of the cross- 6 examination that Jasbir Singh told her that he sustained the injuries on account of the fall, significantly this suggestion was not put to the complainant PW1 Jasbir Singh in his cross-examination, which clearly shows that the said witness was out and out inclined to support the convict. PW4 Dr. Suresh Kumar had medically examined the complainant on 19.9.1996 at about 10 p.m. immediately after the incident and found the following injuries on his person:- 1. “There was fresh wound on the right nostril. Bleeding profusely. Shape of the wound was multiple crescents. A piece of skin with little portion of nasal specially ala was missing as the area of nose was dangerous zone for bleeding and infection. Immediately stitching done. First aid treatment given. Patient got easy after treatment. As permanent disfigurement has been observed with injury in dangerous zone of nose and it was an incised wound so all treatment was given accordingly. 2. Abrasion and bruise from the face was there. Injury No.1 was grievous caused by sharp edged weapon and Injury No.2 was simple caused by blunt weapon. Therese injuries were fresh. Injury No.1 can be caused with teeth bite. At present also I had seen the injured. There is permanent disfiguration of nose/face and as such, Injury No.1 is grievous.” 7 He denied the suggestion that injury No.1 could be caused due to fall on the barbed wire but admitted that if a person fall on the stone/brick, there would be corresponding injuries, which were not found mentioned in the MLC issued by him. On going through the evidence of the prosecution, vis-à-vis statement of the convict, I do not find any major contradiction in the statements of the witnesses of the prosecution which makes its case doubtful. There are concurrent finding of facts, which cannot be interfered with in revision especially when there appears no mis-appreciation of facts, accordingly, the conviction passed by the learned trial court and upheld in appeal by the learned Additional Sessions Judge under Section 326 of the Indian Penal Code is correct and calls for no interference. Insofar as the sentence is concerned, the learned counsel for the petitioner has submitted to take the lenient view in view of the compromise arrived at between the parties and also keeping in view the fact that the petitioner is aged about 45 years, a Government servant, sole bread earner of the family and he is not a previous convict, therefore, the ends of justice would be met in case the substantive sentence is forgone. I have considered the contention so raised. In the peculiar facts and circumstances of the case that the parties have compromised the matter between them but 8 due to technical difficulty that the offence under section 326 IPC being non-compoundable could not be compromised. Thus keeping in view the extenuating and exaggerating circumstances on record and also the fact that the petitioner is not a previous convict, further the complainant being his close relative intends to forgive him, the ends of justice will be met if the sentence is modified till rising of the court, while maintaining the fine. In addition the petitioner is also hereby directed to pay Rs.15,000/- as compensation to the complainant for the injuries caused to him which shall be deposited by the petitioner within a period of one month from today before the learned trial court, failing which it shall be realized as a fine. Ordered accordingly. Send down the records. (Surinder Singh) Judge. December 5, 2008. (Pds)