IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.618 of 2002. Decided on: June 24, 2009. Shyam Kumar & Anr. …Appellants. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. Whether approved for reporting?1 For the Appellants: Mr Neeraj K.Sharma, vice Mr.Jagdish Vats, Advocate. For the respondent: Mr P.K.Sharma, Addl.A.G. R.B.Misra, Judge (Oral): Heard Mr.Neeraj Sharma, learned vice counsel for the appellants and Mr.P.K.Sharma, learned Additional Advocate General, for the respondent / State. 2. The present criminal appeal has been preferred in reference to the judgment dated 19.8.2002, passed by the learned Sessions Judge, Bilaspur, H.P. in Sessions Trial No.39 of 1997 whereby the learned Sessions Judge, while hearing the said case in reference to alleged offence under Section 307 I.P.C. and Section 3 of the Scheduled Castes Whether the reporters of the local papers maybe allowed to see the judgment? …2… and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 IPC, in reference to F.I.R. No.133/96 dated 6.7.1996, has found the appellants guilty of offence under Section 324 IPC read with Section 34 IPC and sentenced the accused to rigorous imprisonment till the rising of the Court and to pay a fine of Rs.3000/- for the alleged offence under Section 324 read with Section 34 IPC. In order to adjudicate the controversy, it is necessary to indicate the prosecution case. 3. It appears PW-3 Sarwan Kumar, son of Tulsi Ram, resident of village Kuddu, Tehsil Sadar, Police Station, Barmana, District Bilaspur, was deployed as Constable, in Police Station, Sadar, Bilaspur, while coming on 5.7.1996, around 8.45 A.M., from Panjgain to his house, came across two accused persons, namely, Shyam Kumar and Rajinder Singh near Patwar Khana (at a distance of about half kilometers from Panjgain) coming on the scooter from Panjgain side. After stopping the scooter, the said accused persons said to have started beating PW-3 with fist and kick blows by uttering that PW-3 is “Dagi Chamar” and he will not be spared. It appears a case was initiated by Sarwan Kumar, son of Gulaba Ram, regarding eve teasing of his daughter, as such, accused Rajinder Singh alias Pappu caught hold of PW-3 from his neck and Shyam Kumar …3… accused took out a knife and gave a blow of it which struck on his right eye and head. Consequent upon beating by the accused persons, PW-3 had fallen down and became unconscious. While trying to go to his house on foot, after gaining consciousness, the accused started pelting stones over him, some of which fell on the side of his house. However, the father of PW-3, Tulsi Ram, came out of his house and cried for the help and in the meanwhile PW-5 Sarwan Kumar, son of Gulaba Ram, and mother also came with a torch and in the torch light, both the accused were seen running on the scooter. On making hue and cry, one Sohnu, Gulaba Ram and Nikka Ram came at the place of incident and whole of the incident was narrated by PW-3 to them. In such a situation, report was lodged in the Police Station. Statement of complainant was recorded by HC Prabh Dayal (PW-7) under Section 154 Cr.P.C. The case was investigated by Kaur Chand, A.S.I. by preparing the site plan and taking into possession the stones, which had been pelted over the victim. PW-3 was medically examined and statement of Shyam Kumar was recorded on 20.7.1996 where he has confessed that knife was kept in his suit case and in reference to that disclosure statement of Shyam Kumar was made and scooter was also recovered. After making investigation, challan in reference to Section 307 …4… read with Section 34 IPC and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was submitted to the Court. 4. The prosecution has examined as many as ten prosecution witnesses. The accused in their statements under Section 313 Cr.P.C. have denied the prosecution case. 5. On the basis of material on record, the following points were put for determination by the trial Court which were decided against the accused and are reproduced herein-below:- i) Whether the prosecution proves that on 5.7.1996 at 8.45 p.m. at Panjgain, the accused persons attempted to murder PW- 3 and they also uttered the words ‘Dagi Chamar’ to him and, as such, both of them are guilty under Section 307 IPC and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 IPC? ii) Final order. 6. The learned trial Court has taken note of the defence version who has submitted that since the identity of the accused was not established and the witnesses have turned hostile and the medical evidence does not support …5… the prosecution case, therefore, the accused have to be given benefit of doubt, whereas, according to the prosecution, the accused could be held guilty in reference to testimony of the victim PW-3 i.e. the injured witness. 7. Learned trial Court has noticed that the victim has deposed that both the accused belong to his village and he personally knows them prior to the incident, as, a criminal case against one of the accused, namely, Rajinder Singh under Section 354 of the IPC was filed by the daughter of his uncle’s son Sarwan Kumar PW-5. In that reference, both the accused were having grudge, as that case was initiated at the instance of the victim. PW-3 Sarwan Kumar has stated on oath that while being beaten, the accused Rajinder Singh caught hold him by neck and another accused Shyam Kumar gave him knife blow on his right eye and head. Blood started oozing and he fell down on the road and on his raising noise, nobody came to his rescue. After some time, he became unconscious. By the time the victim has gained consciousness, the accused had fled away. Though a suggestion was indicated that since the incident has taken place during night on the main road, which leads from Beri to Darlaghat, as such, the said incident might not have taken in the manner it has been alleged to have taken place, but after going through the testimony of PW-3, the learned …6… trial Court has not noticed any discrepancy or inconsistency in the occurrence of incident when the learned trial Court has very categorically noted in reference to the testimony of PW-3 that Rajinder Singh caught hold the neck of the victim while another accused Shyam Kumar had given him knife blow on the right eye and head causing injuries on the vital part of the body. The said injuries and its infliction on the body of the victim was corroborated by the report of Dr.S.P.Dhiman (PW-1) who had examined the victim on 6.7.1996 at 4 a.m. and had found the following injuries on the person of the victim:- 1. Linear sharp edged wound on the right side parietal region of scalp 7.6 cm above the upper boarder of forehead of size 2.5 cmx0.9 cm x 0.5cm wide. Blood was oozing on touch. Hairs were soiled with blood. 2. Skin eroded on the right hand in the area 2.3 cmx1.6 cm at the base of right thumb. Serum was oozing from the wound. Skin eroded in the area 0.8 cm x 0.9cm. Serum oozing 0.6 cm adjacent to the above wound lateral side. 3. Reddish to bluish colouration haematoma surrounding left eye extending to the upper boarder of maxilla to temporal region. …7… 4. Reddish coloured bruise was present over the lateral angle of medible of size 2.6 cm x 1.5 cm. 5. Reddish to bluish coloured haematoma was present around the right eye. Congectiva showed the sub conjectival haemorrhage on the lateral angle of eye. 6. Reddish coloured bruise was present over the ventral aspect of chest 7 cm lower to left nipple of 2.1 cm x 1.8 cm. Reddish coloured bruise 10.2 cm away from axilla on the chest extending to the back of size 4.1 cm x 0.6 cm. 7. Multiple abrasion were scattered over the deltoid region of right arm in the area 5.1 cm x 3.5 cm on the back. 8. Swelling on the both lips. Mucous membral of the upper lip shows the laceration opposite to upper teeth 1, 2, 3. 9. Linear sharp edged wound on the right eye brows perpendicular to eye brow 0.3 cm inward medial end of eye brows of 0.4 cm x 0.2 cm x 0.1 cm depth. 8. As per the opinion of PW-1, Dr.S.P.Dhiman, almost all the injuries were simple, except injuries No.1 and 9 which could have been caused by sharp edged weapon while …8… injuries No.2 to 8 may be caused by blunt weapon. As per the opinion of the doctor, the probable duration of the injuries was within 12 hours. On the analysis of the prosecution witnesses i.e. PW-5 and PW-3, learned trial Court has arrived at the finding that both the accused had assaulted the victim and inflicted injuries on him. It has also been noted that PW-4 Nand Lal, PW-5 Sarwan Kumar and PW-6 Gian Chand identified the accused but it is nobody’s case that at a given time when the quarrel took place, they were the eye witnesses. Rather, the case of the complainant was that at the relevant time he was alone and despite his cry for help, none came and thereafter he had fallen down and became unconscious. Thereafter, all the witnesses came into picture at a later stage when the occurrence was disclosed to them by PW-3. Since both the accused belong to the same village of victim and there had been a criminal case against accused Rajinder Singh which was filed by the daughter of his uncle’s son Sarwan Kumar (PW-5), as such, a strong motive was inferred for committing the offence by the accused. 9. In my respectful consideration and keeping in view the injuries and in the facts and circumstances of the case, the trial Court has rightly found the accused, guilty under Section 324 IPC and not under Section 307 IPC. In the …9… totality of the facts and circumstances, the trial Court had convicted both the accused for their alleged involvement under Section 324 read with Section 34 IPC and had awarded rigorous imprisonment till the rising of the Court with a fine of Rs.3000/- and in default of payment of fine to undergo imprisonment for a period of six months. 10. It has been argued that sentence of rigorous imprisonment till rising of the Court, along with fine, may not tantamount to moral turpitude. According to the learned counsel for the appellants, with such stigma in the name of moral turpitude, the service career of the accused may not be affected whereas, if the alleged offence is taken to be true and the conviction is taken to be awarded against the accused even then the incident and the punishment would only be a quarrel. 11. I have heard learned counsel for the parties and have gone through the contents and the material on record and the prosecution witnesses. In my considered view, the sole testimony of the victim PW-3 inspires confidence, as the injuries have been inflicted on the person of the victim by both the accused out of the anguish being carried in reference to alleged case against Rajinder Singh said to have been instituted at the instance of the victim. So, this grudge was prevailing since past cannot be said to be carried on as …10… a motive to inflict such injuries. However, I find force in the contentions and submissions of the learned counsel for the appellants that the said incident and the quarrel if taken to be true does not amount to the moral turpitude though this Court does not find any occasion to interfere in the opinion and conclusion arrived at by the learned trial Court and the view taken by the learned trial Court that the prosecution was successful in proving the case against both the accused for their involvement under Section 324 read with Section 34 IPC and by awarding sentence as indicated above and since the appellants have already undergone the said sentence of suffering rigorous imprisonment till rising of the Court and have already deposited the fine of Rs.3000/- each in the past. Therefore, the verdict of the trial Court requires no interference. However, it may be made clear that the accused cannot be said to be involved in moral turpitude in reference to the incident in question as this is a matter of quarrel emanating from previous grudge. 12. In view of the above, the criminal appeal is disposed of. Bail bonds furnished by the accused are hereby discharged. June 24, 2009. ( R.B.Misra ), J. (soni)