Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.215 of 2004. Dated of Decision: October 5, 2010. --------------------------------------------------------------------------------------------------- Hem Singh and another. …… Appellants. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes.. For the Appellants : Mr. G.R. Palsara, Advocate. For the Respondent : Mr. Anil Jaswal, Deputy Advocate General. Surinder Singh, J(oral) : 1. The appellants were tried and convicted for the offences punishable under Sections 333 and 332 of the Indian Penal Code and each of them were sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of ` 10,000/- under Section 333 of the Indian Penal Code and one month and fine of ` 3,000/- under Section 332 of the Indian Penal Code with default clauses, hence the present appeal. 2. The appellants were tried on the allegations that on 29th October, 1999 at about - 2 - 3.20 p.m., PW1 Dr. Chaman Lal, Medical Officer posted in PHC Bagsaid was discharging his official duties in his office. It is alleged that prior to the alleged incident, father of appellant Pushap Raj and his brother had also picked up a quarrel with BMO Dr. Dinesh Sharma, who had lodged a reported against them. At about 3.30 p.m., he was attracted by the noise coming from outside the hospital campus. When he came out, he noticed the appellants, who were drunk, calling the bad names to Dr. Dinesh Sharma, the then Block Medical Officer (BMO). PW1 Dr. Chaman Lal desisted them from making the noise in the hospital campus, but despite that they continued hurling the abuses. On this, Dr. Chaman Lal went nearer to them, but the appellants gave kick blows and fisticuffed him, as a result of which, he sustained injuries on his left eye, lip and teeth. Thereafter, PW2 Mohinder Singh, Pharmacist, PW5 Shakuntla Sharma, Staff Nurse and one Hem Singh (not examined) reached on the spot, removed Dr. Chaman Lal for treatment. The appellants had escaped from the place of incident. - 3 - 3. Police visited hospital on the information given by some person and recorded the statement Ex.PW1/A of Dr. Chaman Lal under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ex.PW4/A. 4. Police took up the investigation of the case, prepared site plan Ex.PW7/A, applied to the Block Medical Officer, PHC Bagsaid, for the medical examination of the injured and obtained MLC Ex.PW6/A. PW6 Dr. Kuldeep Sharma had noticed the following injuries on the person of injured Dr. Chaman Lal:- (i) Black eye left; (ii) Contusion with abrasion on upper lip left side on mucosal surface; and (iii) Lower medial incisor on left side had loosened, no active bleeding from gum margins was present. 5. The injured doctor was referred to the Dental Surgeon of Zonal Hospital, Mandi for the expert opinion with respect to injury No.3. As per the expert opinion, the said injury was found to be grievous in nature as tooth No.31 was found dislocated from the socket and another tooth - 4 - fractured. Police also took into possession the posting order Ex.PW3/A of Dr. Chaman Lal at PHC Bagsaid (Mandi) vide memo Ex.PW3/B. 6. After completing the investigation, police came to the conclusion that the appellants were responsible for the offences aforesaid, as such prepared the challan under Section 173 of the Code of Criminal Procedure and presented in the court for their trial. 7. The appellants were charge-sheeted for the offences aforesaid. They pleaded not guilty and claimed trial. To prove its case, prosecution examined PW1 Dr. Chaman Lal injured- complainant, PW2 Mohinder Singh Pharmacist, PW5 Smt. Shakuntla Sharma, Staff Nurse, PW6 Dr. Kuldeep Sharma, who had initially examined the injured, PW8 Dr. Jaya Ram Kaundal, Dental Surgeon and PW7 the Investigating Officer, Sub Inspector, Police Station Gohar, District Mandi, besides examining other formal witnesses. 8. The appellants were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found - 5 - attendant upon them. They took up the stand that the case was foisted upon them because of inimical relations as they had made complaints against the doctors to the local MLA for not performing their duties properly. 9. The appellants were called upon to enter into their defence. They did not lead any evidence in defence. The learned Court below disbelieved the defence version and at the end of trial, they were convicted and sentenced as aforesaid, hence the present appeal. 10. Shri G.R. Palsra, learned counsel for the appellants vehemently argued that the complainant was not discharging any public duties at the relevant time, rather he himself went out of the PHC compound, he himself was an aggressor and there has been material contradictions in the statements of the witnesses and also that many witnesses had assembled on the spot, but no independent witness was examined to substantiate the case of the prosecution. - 6 - 11. Contra, Shri Anil Jaswal, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further argued that the statement of the complainant PW1 Dr. Chaman Lal is worth inspiring confidence, which stands fully corroborated by the medical evidence as well as the statements of PW2 Mohinder Singh Pharmacist and PW5 Shakuntla Sharma Staff Nurse, who were present in the hospital at that time. 12. I have thoughtfully considered the rival contentions of the parties and have carefully gone through the evidence on record. 13. As a matter of fact, the injured witness is a competent and his testimony cannot be easily brushed aside. In this case, PW1 Dr. Chaman Lal is a Medical Officer, who at the relevant time was posted in PHC Bagsaid. He categorically stated that at about 3.30 p.m., he had heard the noise from the hospital campus. On hearing, he came out and noticed the appellants to whom he identified even during the trial of the case, had come inside the campus and they were hurling - 7 - abuses to his colleague Dr. Dinesh Sharma. He further stated that the appellants were under the influence of liquor. Prior to the said incident, the father of appellant Pushap Raj had some quarrel with Dr. Dinesh Sharma and the said doctor had lodged a report against him with the police. He told the appellants not to make the noise in the hospital campus. He was able to drive them off to some distance; thereafter they started calling bad names as before and also to him. He wanted to stop them from doing so. He went to them. On this appellant Pushap Raj dealt a fist blow which landed on his face and also gave kick blow and fisticuffed on other parts of the body, resulting into the injuries on his left eye, lip and teeth. Hem Singh (not examined), PW2 Mohinder Singh Pharmacist and PW5 Smt. Shakuntla Sharma Staff Nurse came to the spot and took him for the treatment and in the meantime appellants escaped. He also proved his statement Ex.PW1/A given to the police. In cross-examination, although he admitted that there were shops of Hari Singh, Parvatu, Hari Chand, Sohan Lal and Biri Singh - 8 - across the road nearby, but it was not asked from him as to whether any of them were present and had witnessed the said incident. Although PW2 Mohinder Singh Pharmacist is his co-villager, but he stated that he did not see the incident in question. He stated that he was attracted by the commotion. He alongwith Hem Singh and Shakuntla Sharma went to the spot and noticed the injuries on the person of PW1 Dr. Chaman Lal and they came to know from him that he was beaten up by the appellants. PW1 Dr. Chaman Lal though was meticulously cross-examined with respect to the incident, but no dent could be caused in his statement. 14. Further PW5 Smt. Shakuntla Sharma, Staff Nurse has also lent strength to the version of injured PW1. She testified that the appellants had given the beatings to the complainant and the complainant had sustained the bleeding injuries. She admitted in cross-examination that ‘Bagsaid- Badeen road’ is at a distance of 100 meters from the PHC campus. The site plan Ex.PW7/A depicts that the incident in question had taken place at - 9 - point ‘F’, which is outside the campus of the said road. PW7 SI Lal Chand confirmed the correctness about the site plan aforesaid. 15. PW6 Dr. Kuldeep Sharma, who initially examined the complainant PW1 Dr. Chaman Lal and noticed injuries No.1 and 2 as mentioned in the MLC Ex.PW6/A to be simple in nature, but he referred him to the Dental Surgeon for expert opinion with respect to injury No.3. 16. PW8 Dr. Jaya Ram Kaundal, Dental Surgeon testified that there was dislocation of tooth No.31 of PW1 Dr. Chaman Lal and this injury was grievous in nature and to that effect, he gave his opinion Ex.PW8/A. Though the defence in cross-examination suggested that this injury could be caused by fall, but the case as projected in the cross-examination of PW1 by the appellants did not state so in their statements, rather in their statements under Section 313 of the Code of Criminal Procedure their case is of total denial. 17. On the critical examination of the aforesaid evidence on record, it is apparently clear that PW1 Dr. Chaman Lal was not - 10 - discharging any official duties to which he was deterred by the appellants, rather he himself on hearing the hurling of abuses from outside the hospital Campus left his office, came out to pacify the appellants, but he could unable to drive them off the place. The appellants continued hurling abuses to PW1 Dr. Chaman Lal when they were on the link road outside the Campus as admitted by PW1 Dr. Chaman Lal himself. Chaman Lal had gone nearer to them at that time he was not discharging his official function outside the hospital compound. He was fisticuffed and kick blows were given by the appellants resulting into the bleeding injuries and loss of his one tooth. In these circumstances, it can also not be said that the complainant was an aggressor. On the proved facts, it is a case of voluntarily causing grievous hurt to the complainant in furtherance of their common intention by the appellants. As such, the conviction and sentence of appellants under the offences under Sections 333 and 332 of the Indian Penal Code are set-aside and I hold them guilty for the offence punishable under - 11 - Section 325 read with Section 34 of the Indian Penal Code and convict them accordingly, for the said offence. 18. I have heard the learned counsel for the appellants on the quantum of sentence. Learned counsel for the convicts-appellants submitted that the appellants are young persons having recently settled in their life. They are married and have their children. Further the appellants are sole bread earners of their family and they are not previous convicts. The learned counsel therefore, prayed that a lenient view may be taken in the above circumstances. 19. I have considered this aspect of the matter. This incident took place in the year 1999, more than a decade ago. At the time of commission of offence, both the appellants were less than 25 years of age. I have also considered the extenuating and exaggerating circumstances appearing on record. In my considered opinion, if appellants are sentenced to undergo imprisonment, their association with the hardened criminals in jail would shake their psyche and - 12 - might become deterrent to the society, as such, the interest of justice will be met, in case each of the appellants are sentenced till rising of the court and to pay a fine of `1,000/- each and in addition, each of the convicts shall also pay the compensation to the tune of ` 5,000/- each, which shall be released and paid by the learned trial Court to injured PW1 Dr. Chaman Lal. Ordered accordingly. The appellants shall be present on 15.11.2010 before the learned trial Court. 20. As per report of the Registry, the fine amount as imposed by the learned trial Court stands deposited in the trial Court. Out of the said fine amount, the fine imposed by this Court alongwith compensation as aforesaid shall be deducted and the balance amount shall be refunded to the appellants, whereas the compensation amount shall be released to the victim as aforesaid. Appeal stands disposed of. 21. Send down the records. Copy dasti. October 5, 2010. (Surinder Singh) (Pds) Judge. - 13 -