IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.167 of 2004. Judgment reserved on 24th September, 2010. Date of Decision: 8th October, 2010. ____________________________________________________ Savitri Devi and others ….Appellants. Versus State of Himachal Pradesh ....Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. G.R. Palsra, Advocate. For the respondent : Mr.J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellants were convicted for the offences punishable under Sections 147, 323, 307 and 506 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment with default clauses as under: Sr. No. Name of appellant Offence Sentence 1. Savitri Devi 1) Under Section 307 IPC. Six months simple imprisonment and to pay a fine of `3,000/-. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. Three months simple imprisonment. Three months simple imprisonment. Three months simple imprisonment. 2. Shakuntla Devi. 1) Under Section 307 IPC. 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. Six months simple imprisonment and to pay a fine of ` 3,000/-. Three months simple imprisonment. Three months simple imprisonment. Three months simple imprisonment. 3. Vijay Kumar. 1) Under Section 307 IPC. 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. One year rigorous imprisonment and to pay a fine of ` 5,000/-. Six months rigorous imprisonment. Four months rigorous imprisonment. Four months rigorous imprisonment. 4. Sanjeev Kumar. 1) Under Section 307 IPC. One year rigorous imprisonment and to pay a fine of ` 5,000/-. - 3 - 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. Six months rigorous imprisonment. Four months rigorous imprisonment. Four months rigorous imprisonment. 5. Hukam Chand. 1) Under Section 307 IPC. 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. One year rigorous imprisonment and to pay a fine of ` 5,000/-. Six months rigorous imprisonment. Four months rigorous imprisonment. Four months rigorous imprisonment. 6. Rajinder Kumar. 1) Under Section 307 IPC. 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. One year rigorous imprisonment and to pay a fine of ` 5,000/-. Six months rigorous imprisonment. Four months rigorous imprisonment. Four months rigorous imprisonment. 7. Sunil Kumar. 1) Under Section 307 IPC. One year rigorous imprisonment and to pay a fine of ` 5,000/-. - 4 - 2) Under Section 323 IPC. 3) Under Section 147 IPC. 4) Under Section 506 IPC. Six months rigorous imprisonment. Four months rigorous imprisonment. Four months rigorous imprisonment. All the sentences were ordered to run concurrently. 2. In short, the prosecution case can be stated thus. On 12.1.2001 there was a Lohri festival in village Darpa. PW2 Sunil Kumar was present in his house with his friends Ranbir and Satish. Around 7.00 p.m. they took meals and thereafter around 9.30 p.m. at the instance of Satish they went to his house to take some more meals. After finishing the meals at about 10.00 p.m. Sunil Kumar (injured) and Ranbir Singh started back to their house. Satish Kumar accompanied them to some distance. When they reached near the cowshed of Satish, the appellants who were allegedly hiding in the bushes pounced upon them and started giving beatings and also fisticuffed and kicked. Sanjeev Kumar appellant is alleged to have given Danda blow on the head of Sunil Kumar who on receiving the injuries, fell down unconscious. PW1 Sanjeev Kumar son of Basant Singh got attracted by the commotion - 5 - and went towards the side of incident. He saw the appellants giving beatings to Sunil Kumar adjoining the cowshed of Krishan Lal. He intervened and even he was also given beatings by appellant Sunil Kumar and sustained blood injuries on his ear. On hearing the hue and cry, Dalip Chand, Sunder Ram, Rakesh Kumar and some ladies alongwith co-villagers reached the spot. The appellants fled away from the spot. Sunil Kumar was badly injured and was unconscious. He also vomited blood. Thereafter he was taken to the hospital at Sarkaghat. 3. PW6 Dr. Rakesh Mohan had initially attended injured Sunil Kumar in the hospital at Sarkaghat. He had noticed the following three injuries: (i) Swelling and contusion (black eye) of left eye. (ii) Clotted blood in left nasal cavity. (iii) Head injury. He was referred to PGI, Chandigarh or I.G.M.C., Shimla for neurosurgery referral and further specialized management. He was found not fit to make any statement. He was taken to I.G.M.C. Shimla in critical condition where he was attended upon by PW5 Dr. - 6 - R.C. Thakur, Associate Professor, Department of Neurosurgery. The medical examination of PW1 was got conducted in the hospital. On his return to his village, PW1 aforesaid found the appellants dancing in the court-yard on the music-deck. Next morning he went to the Police Station and lodged FIR Ext.PA. 4. The police took up the investigation of the case, reached the spot and recovered three Dandas lying on the spot which were taken into possession vide memo Ext.PB. 5. PW5 Dr. R.C. Thakur aforesaid on the examination of Sunil Kumar found closed head injury with depressed fracture of left frontal-bone (skull) with small contusion left frontal lobe. Doctor found him conscious and oriented, but without any neurological deficit. Though, there was a depressed area over the left side of the forehead. There was also blackening of both the eyes. On CT scan the Doctor also found depressed fracture of left frontal bone including orbit with small contusion of brain, thus he was treated conservatively. He remained hospitalized from 15.1.2001 to 22.1.2001 and discharged on 23.1.2001. - 7 - 6. On the treatment summary Ext.PC received from I.G.M.C. Shimla, PW6 opined that injury No.2 was simple in nature whereas injury No.3 on the head was grievous caused with a blunt weapon within six hours and he issued the Medico Legal Certificate Ext.PE and his opinion was rendered at point B of Ext.PE with respect to the head injury which was opined to be endangering life. 7. After recording the statements of the witnesses and on the completion of the investigation, the Challan was presented in the Court for the trial of the appellants. 8. The appellants were charge-sheeted for the offences aforesaid to which they pleaded not guilty and claimed trial. 9. The prosecution examined the injured persons, doctors and the alleged eye witnesses besides examining the Investigating Officer and the appellants were also examined under Section 313 of the Code of Criminal Procedure. They did not raise any specific defence. The perusal of the cross-examination of witnesses indicates that the defence of the appellant was that Shri Sunil Kumar (injured) had a fall from the - 8 - height in a trench between the cowshed and the retaining-wall resulting into injuries for which they were not responsible. 10. The appellants were called upon to enter upon their defence, but they did not lead any evidence in defence. At the end of trial the learned Additional Sessions Judge convicted and sentenced the appellants as aforesaid. Now they are in appeal. The substantive sentence was suspended while admitting the appeal on 22.3.2004. 11. Shri G.R. Palsra, learned Counsel for the appellants vehemently argued that there has been civil dispute with respect to the land inter-se the parties and taking the advantage by accidental fall of Sunil Kumar in the trench a false case was foisted upon the appellants. He further argued that there are material contradictions in the statements of the eye witnesses and the injured, who were interested in the case which makes the case of the prosecution doubtful. It is also argued that the offence under Section 307 of the Indian Penal Code against the appellants is not made out. - 9 - 12. Contra, Shri J.S. Rana, learned Assistant Advocate General for the respondent/State supported the impugned judgment of conviction and sentence. 13. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. 14. PW2 Sunil Kumar (injured) has corroborated the prosecution case. He categorically stated that Sanjeev Kumar appellant had given a blow on his head with a Danda, as a result of which he became unconscious. This fact has been corroborated by PW3 Satish Kumar, who was accompanying him and PW1 Sanjeev Kumar who was attracted by commotion. He reached the spot and tried to rescue said Shri Sunil Kumar and in that pursuit even Sanjeev Kumar had sustained the minor injuries. Although, PW4 Sunder Ram stated that when he heard noise of the quarrel he reached at the spot and saw that the appellants and the victim were scuffling with each other and victim Sunil Kumar was given beatings by them. He also tried to rescue the victim and appellant Vijay Kumar gave him a push as a result of which he fell down. Thereafter many villagers assembled there. - 10 - 15. PW9 Smt. Salochna Devi stated that she was sleeping in the room and she was attracted by the cries. She went to the spot. She saw appellant Sanjeev Kumar carrying a Danda in his hand and he had given the blow on the head of Sunil Kumar. She went there and also tried to snatch the Danda from the hand of appellant Sanjeev Kumar. When more villagers collected there, the assailants fled away from the spot. She categorically stated that the accused persons gave bearings to Satish Kumar and Sunil Kumar. She stated hat her son PW1 Sanjeev Kumar was also there, who reached on the spot prior to her arrival. She further stated that during the occurrence it was complete dark, but electric light was coming from a house to the spot. To a suggestion given to her in the cross-examination she admitted that Sunil Kumar injured had fallen unconscious when she visited the spot. She further admitted that appellant Rajinder was having plaster on his right hand. He had sustained the fracture of right collis, as stated by PW1 Sanjeev Kumar. Although, PW1 has exaggerated in the cross-examination that Sunil Kumar had sustained about 20-25 injuries on various parts of his body, whereas he has only three injuries as - 11 - aforesaid, but on the examination of the statement of this witness it is established that Sunil Kumar was given severe beatings and in that pursuit he sustained the head injury. The names of all the appellants did not find mention in the statement of the injured recorded under Section 161 of the Code of Criminal Procedure with which he was confronted. He also admitted that appellant Rajinder was having plaster on his hand, though present at the time of occurrence and had come to see him on the return from the house alongwith his wife. This conduct of appellant Rajinder Singh, in my opinion, exonerated him from the allegations that he was also an assailant as no overt- act has been attributed to him nor he could have stated to be a member of unlawful assembly. 16. Further, PW1 Sanjeev Kumar, PW2 Sunil Kumar and PW3 Satish Kumar in the statements have only addressed the appellants without naming them except that all these witnesses were specific so far appellant Sanjeev Kumar is concerned, who has given the Danda blow on the head of Sunil Kumar. The association of appellants Vijay Kumar and Sunil Kumar has also been proved by PW4 Sunder Ram and PW1 - 12 - Sanjeev Kumar as assailants because PW4 Sunder Ram was also given a push by appellant Vijay Kumar. Therefore, in these circumstances except appellants Sanjeev Kumar, Vijay Kumar and Sunil Kumar there is no clinching evidence regarding the presence of other appellants on the spot and forming unlawful assembly. Therefore, in my opinion they deserve to be acquitted by giving them the benefit of doubt. 17. In so far as the injury on the skull of PW2 Sunil Kumar and also minor injuries caused to PW1 Sanjeev Kumar are concerned, generally when there is a rivalry there is a tendency of naming more accused from the same family, but it is the duty of the Court to separate the grain from the chaff and in that exercise meticulous examination of the evidence is required. Therefore, from the above discussion, it appears that the head injury was caused to PW2 Sunil Kumar with a Danda though given by appellant Sanjeev Kumar and minor injuries caused to PW1 Sanjeev Kumar by appellant Sunil Kumar and the presence of appellant Vijay Kumar is also proved by PW4 Sunder Ram as aforesaid. They acted in furtherance of common intention in causing the injuries to aforesaid persons and grievous injury - 13 - which was caused to PW2, as already stated above, was inflicted by appellant Sanjeev Kumar and in the opinion of the doctor this injury was endangering life. Injured Sunil Kumar was advised to go to PGI, Chandigarh for neurosurgery to which he refused and the doctor PW5 has categorically stated that the injured had closed head injury with depressed fracture of left frontal bone including orbit with small contusion of brain, thus he was treated conservatively. 18. In cross-examination PW5 Dr. R.C. Thakur stated that this small contusion did not require any surgical invention, but confirmed the presence of the depressed fracture which required operation. He further admitted that no major artery had ruptured nor there were any chances of any infection on the external wound. The injuries were found on both table of the skull. There was no bleeding inside the inner table of the skull. He also admitted that the temporal bone and orbital plate of the frontal bone can more easily be fractured, but in this case all the five layers were intact. 19. Although, PW6 Dr. Rakesh Mohan admitted that Neurosurgeon had not designated injury No.3 - 14 - endangering human life, therefore, on the discussion of the medical evidence aforesaid in my considered opinion, it was not a case of attempted murdered. 20. In order to attract Section 307 of the Indian Penal Code, it is necessary to establish that if the injured would have met with his death, the offence would have been one under Section 302 of the Indian Penal Code. In the instant case, the medical evidence showed that the injury on the head causing fracture on the skull bone only PW5 Dr. R.C. Thakur aforesaid styled a dangerous being situated on a vital part and was likely to cause death, but he did not state that the injury was sufficient in the ordinary course of nature to cause death. Thus the offence under Section 307 of the Indian Penal Code is ruled out for which the appellants stand acquitted. But, however, Sanjeev Kumar appellant under these circumstances is the only person who had the knowledge that by inflicting the blow on the head could cause the death of the injured, which would be culpable homicide not amounting to murder. Thus his case falls under Section 308 of the Indian Penal Code, as the occurrence took place during the scuffle. Since the co-accused namely Vijay Kumar and Sunil - 15 - Kumar were also assailants alongwith main accused Sanjeev Kumar for inflicting simple injuries to PW1 and PW2 aforesaid, to that extent they shared the common intention. The conviction and sentence of appellants Savitri Devi, Shakuntla Devi, Hukam Chand and Rajinder Singh for the offences charged is set aside and they stand acquitted by giving them the benefit of doubt. Consequently, their appeal is allowed. 21. But, however, in conclusion appellants Sanjeev Kumar, Vijay Kumar and Sunil Kumar all shared the common intention of beating PW2 Sunil Kumar and in that consequence they inflicted the simple injures to PW2 Sunil Kumar and also to PW1 Sanjeev Kumar, further appellant Sanjeev Kumar is also held solely responsible and guilty for causing the grievous injury causing fracture on the forehead of PW2 Sunil Kumar, and he had the knowledge that such injury would cause his death. 22. As such, the conviction of appellants Sanjeev Kumar, Vijay Kumar and Sunil Kumar is affirmed under Section 323 read with Section 34 of the Indian Penal Code and each of them are ordered to pay a fine of ` 1,000/-, whereas only appellant Sanjeev - 16 - Kumar is held guilty of the offence punishable under Section 308 of the Indian Penal Code instead of 307 of the Indian Penal Code, as such he also stands convicted for the said offence and is sentenced to undergo imprisonment for a period of two months and to pay a fine of ` 2,000/-. In addition to it, he shall also pay compensation to the tune of ` 10,000/- (rupees ten thousand only) to PW2 Sunil Kumar, injured. 23. The perusal of the record shows that appellant Sanjeev Kumar remained in custody with effect from 10.1.2001 till June, 2001, i.e., for about five months, therefore, he is deemed to have already undergone the sentence imposed by this Court. 24. Since appellant Sanjeev Kumar has been sentenced to pay ` 13,000/- (` 2,000/- as fine and ` 10,000/- as compensation under Section 308 and ` 1,000/- under Section 323 of the Indian Penal Code), whereas the amount of ` 5,000/- stands already deposited by him in the learned trial Court, therefore he shall deposit the balance amount of ` 8,ooo/- (eight thousand) on or before 9th November, 2010, failing which it shall be recovered as a fine by the learned trial Court. - 17 - 25. The balance excess amount qua other convict-appellants as also the acquitted appellants as mentioned as mentioned in Para 20 supra shall be refunded to them. 26. Qua the other offences charged appellants Sunil Kumar, Vijay Kumar and Sanjeev Kumar stand acquitted. 27. The appeal stands partly allowed to the above extent. October 8, 2010. (Surinder Singh), J. (rc)