IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.372 of 2003. Date of Decision: 16.12.2010. _______________________________________________ Hari Singh. ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant: Mr. Rakesh Jaswal, Advocate. For Respondent. :Mr.P.K.Sharma, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The appellant has been convicted for the offences under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 10,000/-. In default of payment of fine, further to undergo simple imprisonment for one year. The court also directed that in the event of realization of fine amount, a sum of Rs.5,000/- be paid to victim Kuldip Sohal. 2. The prosecution case in brief is that on 8.7.2000 at about 8.55 p.m., complainant Kuldip Sohal (PW1) was assaulted by accused Hari Singh with Khukri as a result of which he sustained grievous injuries on his wrist of his right arm as also wounds on his scalp. Whether reporters of the Local papers are allowed to see the judgment?yes. 2 3. The case is that the accused was standing outside the shop of one Parkash Chand along with Milkhi Ram (PW3), Hans Raj (PW6) and Mast Ram. They were talking about organizing a ‘Jag’ (a religious feasting ceremony in the village). Accused Hari Singh @ Golli reached the spot in a three wheeler and attacked the complainant with a khukri. Two blows were delivered, one on the head and the second on the wrist. The complainant ran towards his house which was at a distance of about half furlong from the scene of incident and called out to his wife for help, who came out, took the complainant inside and informed the police. She thereafter rushed to the hospital at Nagrota for medical treatment. She also states that she saw the accused standing in the court yard of his house armed with a khukri. 4. The learned trial Court on the evidence of the complainant Kuldip Sohal (PW1), Smt. Bimla Devi (PW2) wife of the complainant, Milkhi Ram (PW3) who was present at the spot when the assault was carried out, PW6 Hans Raj, who was also present with the complainant, PW12 Dr. Lalit Sharma, Medical Officer, Incharge. P.H.C. Nagrota and PW13 Dr.Dinesh Sood (last two witnesses testifying to the injuries received by the complainant), proceeded to convict the appellant. 5. Learned counsel appearing for the appellant challenges his conviction on number of grounds primarily (a) that there are material contradictions in the testimony/evidence of the prosecution witnesses and when 3 such contradictions are considered in isolation or in totally negates the occurrence as put forth by the prosecution (b) that the witnesses are interested namely, complainant Kuldip Sohal and his wife Smt. Bimla Devi (c) Milkhi Ram (PW3) is inimical to the accused as the younger brother of the accused had beaten up the son of this witness (d) that the medical evidence of injuries has not been established in accordance with the rules of evidence. 6. I have heard learned counsel for the parties and gone through the record. 7. Adverting to the evidence of the prosecution, the testimony of four witnesses assumes primary importance. PW1 Kuldip Sohal is the complainant, who states that he was standing outside the shop of one Parkash Chand along with PW3 Milkhi Ram, PW6 Hans Raj and Mast Ram. He was discussing with them for organizing one religious feasting ceremony (Jag) when accused Hari Singh @ Golu @ Pappu alighted from a three wheeler scooter at around 8.30 p.m. and rushed towards the complainant and delivered two blows with a khukri which he was carrying. He ran towards his house seeking his wife’s help who bandaged him, reported the matter to the police and then rushed him to the hospital for medical treatment. He states that his wife PW2 Bimla Devi also saw the accused carrying the weapon of offence and standing in the court yard. The complainant states that he was taken to the hospital at Nagrota Bagwan where his wound was stitched and then referred to Dharamshala 4 hospital for further treatment/X-ray. Ext.PW1/A is the statement which has been recorded by the police. He admits in his cross examination that he consumed liquor occasionally but on the day of the incident, he had not consumed liquor. He also denied the suggestion that people from the village gathered at the shop where he was standing only for the purpose of getting drunks/consuming liquor. He denies the suggestion that they were 7/8 persons/boys in the three wheeler. Most importantly, he admits that he does not have any quarrel with the accused at any point of time or inimical relations with him. A suggestion has been put to him that the accused was mentally sound which he admits to be so. This line of cross-examination is probably to establish that there was no motive of the accused to have attacked him unless he was of unsound mind more especially when the accused was in a sound mental condition. He then denies that he falsely implicated the accused in the case at the behest of PW5 Piar Chand. 8. PW2 Smt.Bimla Devi states in her evidence that on the fateful day at around 8.30/8.45 p.m. her husband rushed to the house crying ‘Bachao’ ‘Bachao’. She opened the door and saw the accused chasing the complainant and at that time he had khukri in his hand. When she saw the accused, he ran away from the spot. She says that her husband was having injuries on his head and arm. She telephoned the police and rushed her husband to the hospital. She identified the accused as Hari Singh. In cross 5 examination, she states that the police was already present in the hospital when she reached there. PW6 Hans Raj and one lady Salochana were also helped them at that time. The police talked to her husband but he was not in his proper senses at that time. Her statement was recorded on July 9, 2001. She says that the shops are located at a distance of 50/60 yards from their residence and there is a concrete path leading to their house. Again, it has been suggested to her that the liquor is easily available in the shops and all the villagers come there to drink. She denies that her husband was drunk as a result of which he fell down and sustained injuries. She also says that the house of the accused is at a distance of 200 metres from their house. She admits that the accused is a driver in the Red cross and the family had no quarrel/difference with him. She admits that she saw the accused from the distance of one or two yards. 9. Adverting to the statement of PW3 Milkhi Ram who was one of the witnesses present at the time of the assault, he says that on 7.7.2000 the younger brother of the accused had beaten up his son. Next day, the accused came to his house for effecting compromise but he refused to do so saying that this can only be done in the presence of the Pradhan. At around 8.30 p.m, he along with the complainant, PW6 Hans Raj and Mast Ram were sitting in a shop at Hatwas when the accused came there in a three wheeler scooter alighted at the spot and delivered two blows with a khukri one on the head and second on the wrist of the complainant. He 6 then says that the complainant ran towards his house and he as also the other persons present with the complainant also fled away from there. In cross-examination, he says that they were sitting outside the shop on a water tank. He states that it was not a dark night and there was a light in the shop of Parkash Chand. He admits that he did not institute any case against the accused for beating up his son. He corroborates the other witnesses that the complainant had come to the shop where they were sitting after collecting the money for the ‘Jag’. 10. PW6 Hans Raj also corroborates complainant PW1 Kuldip Sohal, PW2 Bimla Devi and PW3 Milkhi Ram on material particulars with respect to the site, time, nature and the manner in which the incident had occurred. He denies the suggestion that the complainant had been drinking liquor and was dead drunk on that day. 11. PW12 Dr.Nalish Sharma has proved on record Ext.PW12/A which is the Medico Legal Certificate. He describes the injuries: “Observations: 1. There was an incised wound on the left temporal region, 8cm x 2 mm widening extending anterior posterior. Muscle deep bleeding present. He was advised for X-ray of scalp. 2. There was an incised wound on the right fore-arm lateral aspect 11 cm. in size x 2cm. vide bone deep. Excessing bleeding present. Stitches applied and compression bandage given. Advised X-ray right forearm and also referred to R.P.M.C. Dharmshala for opinion of Orthopaedic surgeon and surgical specialist and management. General observations: 7 Patient conscious, well oriented, pulse was 92/minute paler positive, HP-108/74 mm hg. RR-22/minute. Pupils normal. I have given a final opinion the basis of the X- ray report which shows fracture right ulna.” 12. He says that the injuries are possible with the khukri Ext.P3. Injury No.1 has been described by him to be simple i.e. the injury to the head and he says that this can be caused by any sharp instrument and is possible in case of a person fall on any sharp object. Injury No.2 which is fracture, according to him can be caused by a blunt weapon. 13. PW13 Dr. Dinesh Sood, conducted the X-ray of the injured complainant on the reference of PW12. He has proved on record X-ray films Ext.P4 and Ext.P6, according to which there was no fracture in the scalp but fracture was seen in the ulna. He has proved on record his opinion Ext.PW13/A. 14. These witnesses have been considered in order to appreciate the submission made by the learned counsel appearing for the appellant that the contradictions on record as pointed out in the grounds of appeal negate the occurrence of the incident. 15. The first point urged is that two independent witnesses Parkash Chand and Mast Ram who were present on the spot have not been examined. Learned counsel submits that these witnesses have been deliberately with held and if their evidence was recorded, it would be unfavourable to the prosecution. I cannot accept this submission for the reason that no foundation has been laid either before the trial Court 8 and nor it has been urged as a fact that these witnesses were inclined to depose in favour of the accused. It is not the number of witnesses produced to prove a particular point which establishes a fact as required under Section 3 of the Evidence Act but rather it is the quality of the evidence which has to be considered. From what I have considered above, I do not find that the quality of evidence brought on record to prove the fact in any manner establishes the innocence of the accused. 16. The second submission made by the learned counsel that the information was given to the police immediately by the wife of the complainant and rapat Ext.PW7/A was recorded. This disclosed a cognizable offence and instead of recording the F.I.R. on this basis, statement of the injured Kuldip Sohal was recorded at Dharamshala which contradicts the occurrence. Learned counsel submits that both the complainant Kuldip Shohal (PW1) and his wife Smt.Bimla Devi (PW2) admitted that the police had visited them at Nagrota hospital and there was no need to have recorded his statement at Dharamshala. He further submits that the complainant and his wife had ample opportunity to manipulate the facts to implicate the accused. This submission also cannot be accepted. 17. What must not be lost sight of is the fact that the evidence of the witnesses supra which has been considered by me, corroborates each other on all the material particulars, namely, the manner of assault, time of assault, the spot 9 where the complainant was assaulted and the medical treatment. The case of the defence that the accused did not have any enmity with the complainant is also a fact to be considered as in such a situation there was no need for the complainant to fabricate any case against the accused. 18. The third submission is that the evidence of DW 1 Ashwani Kumar has been ignored by the Court below. In his examination-in-chief, this witness says that on the date of occurrence i.e. 8th July, 2000, he was present in the shop at 8 p.m. and at that time the complainant was in a drunken state. Five/seven persons came there, quarreled with him and thereafter he says “I do not know what happened”. He then says that the accused was not present on the spot with those boys. In cross-examination he says that he cannot identify any person. He is a meat seller. He admits that he never informed the police that the accused was not present on the spot. He then says that he did not see any injury on the complainant as he was attending customers in his shop. All that I need to say about this testimony is that it is in contradiction of the pleas which has been taken by the accused under Section 313 Cr.P.C. But I need not advert to that as appreciated by the courts below. I find that there is nothing substantial in these generalizations made by this witness. 19. Learned counsel then contends that the medical evidence on the record also does not prove the injury. I have considered the evidence of the two doctors in extenso. I do 10 not find that there is any contradiction with respect to the identity of the complainant who has been examined by them. In the totality of the facts and circumstances, I hold that the prosecution has been able to establish its case beyond reasonable doubt and that the incident is proved under Section 3 of the Evidence Act. 20. It is question of sentencing which presents this court with some difficulty. When the learned trial Court was addressed to this question, it simply brushed aside the submissions made on behalf of the accused holding that the grounds as urged are not tenable for mitigation of punishment. It was pleaded before the trial Court that the accused is a first offender, there is no motive, he is young and has to look after his family and in case a long sentence of incarceration is imposed, his family shall suffer financially. 21. Learned counsel appearing for the appellant urges that the incident is of the year 2000 at which point of time the accused was aged about 29 years. The appeal is now being considered by this Court after a period of ten years when the accused has settled down his life. At the out set, I may add that mere delay in consideration of a case is no ground for mitigation of sentence. It is the severity/gravity of the crime which is to be considered by the Court. If I look for any mitigating circumstances, what I find is that there is no motive for the attack by the accused. He seems to have come to the spot and set up on the complainant for no apparent reason. Why he did that is not clear. Although, some kind of 11 motive is described by PW5 Piarye Lal to persuade the complainant to implicate him in this case, I cannot discern that fact as having been established on the record of the case. I again find that the injury to the head of the complainant is not severe. It is injury of the wrist which has caused a fracture which has been described to be grievous. It is totality of these circumstances which should and ought to have determined the severity of the sentence to be imposed upon the appellant. 22. Looking to the totality of the facts and circumstances of the case, I hold that the sentence of six months rigorous imprisonment would serve the ends of justice and it is directed accordingly. The fine is increased to Rs.50,000/- which the appellant shall deposit before the learned trial Court on or before 30th June, 2011. On deposit of such fine, it shall be paid to complainant Kuldip Sohal (PW1). It is further directed that in case non payment of this fine, the sentence as imposed by the learned trial Court shall revive and the accused shall be liable to serve the entire sentence as imposed by him. 23. Let a copy of this order be sent to the learned trial Court which shall ensure due execution of the sentence. The appeal is dismissed. Bail bonds are forfeited. (Dev Darshan Sud), Judge. December 16,2010(R) 12