IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 89 of 2004 Date of Decision: 16th November, 2010 __________________________________________________________________ Pradeep Kumar Bhandari ….Appellant. Versus State of H.P. ….Respondent. __________________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________________ For the Appellant: Mr. Inderjeet Singh Narwal, Advocate For Respondent: Mr. Ankush Dass Sood, Addl. A.G. with Ms. Shubh Mahajan, Dy. A.G. __________________________________________________________________ Dev Darshan Sud, J (oral). Accused Pradeep Kumar has appealed against the judgment of conviction by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehr for challenging his conviction under Section 324 IPC. He was charged for offences under Sections 307 and 504 IPC but on the basis of evidence on record, he was sentenced for offence under Section 324 IPC to undergo simple imprisonment for three years and a fine of ` 3,000/-. In default of payment of fine, the appellant was 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 sentenced to undergo further simple imprisonment for one month. 2. The prosecution case in brief is that on 22.7.2001 the appellant assaulted one Paras Ram at around 10.30 p.m. at Jeori with such intention and knowledge that the assault is likely to cause death to the injured. He was also charged for having committed this act knowing that the provocation given to Shri Paras Ram would ultimately result in breaking the public peace. 3. The learned Court below had considered the prosecution evidence in detail. In particular, the Court relies upon the evidence of PW1 Smt. Kesari Devi, who states that on that day at around 10.15 p.m. she saw the accused kicking two Gorkhas, who came to her, complaining about their assault and also receiving fist blows on their heads. She identified them as Kharka Bahadur and Raju Rana, who used to reside in the ground floor of the house of the accused. She then states that the accused also threw stones at Paras Ram when he was walking on the road. At that time he was accompanied by one Darshan. She continues that the accused, who seemed to be in an inebriated condition, pelted empty bottles at her. The accused also cried that he would inflict electric current on anybody who would pass from the path. She heard the injured crying “bachao-bachao”. She knows the accused as she resides near his house. 4. PW2 Nek Ram stated that he was working as a cook in a dhaba. On 22.7.2001 at around 10.30 p.m. he and Suresh Kumar heard loud voices. When they came out they saw the accused using abusive language. He had one bottle in his 3 hand, which he threw on the ground. He admitted that no injury was inflicted in his presence. PW4 Dr. Lal Singh examined the injured on that day and found incised wound over scalp 5 cm with supraorbital margins, actively bleeding 5 cm x 1.5 cm x 1 cm in size with sharp margins. The patient was admitted in the hospital for about 2/3 hours. He was given I.V. drips and thereafter discharged. On the evidence on record, the learned Court rejected the contention of the prosecution that offence under Sections 307 and 504 IPC has been established. Relying upon the evidence of two witnesses Kesari Devi PW1 as corroborated by PW12 Paras Ram and PW13 Darshan Singh as also the medical evidence of PW4 Dr. Lal Singh convicted the accused for offence under Section 324 IPC and proceeded to sentence him. 5. Learned counsel for the appellant urges that the learned trial Court was in grave error in convicting the accused under Section 324 IPC. He relies upon the evidence of PW1 Kesari Devi, PW12 Paras Ram and PW13 Darshan to show that their statements are not worthy of credence as the same contained improvements and are contradicted in material particulars. This submission cannot be accepted. The statements of PW12 Paras Ram and PW13 Darshan are clear with respect to the occurrence. They had no enmity with the accused. PW1 Kesari Devi is very vivid when she describes the entire incident including the assault by the accused on Gorkhas as also the cries of the injured PW12 Paras Ram who was walking when he was assaulted. 4 6. One more circumstance is relied upon by the learned counsel for the appellant that the so called injury sustained by the injured could be caused by fall. I am unable to persuade myself that this part of the case of the defence has been established on record. Rather, what I find from the medical evidence of the Doctor PW4 Lal Singh is that the nature of the injury was simple with a sharp edged object and dangerous to life. Medico Legal Certificate Ext.PW4/A was issued by him, according to which the injury caused to the injured was in the nature of incised wound, which was simple, but could be dangerous to life. A triangular stone having a prism shape structure weighing ½ Kg. with sharp margins and heavy base grayish white in colour was examined by PW4 Dr. Lal Singh. According to this witness, the injury could be caused by this stone. I am unable to find anything on record which would establish that the complainant/injured had sustained injuries by fall. The learned Judge, on the evidence, has rightly convicted the appellant for offence under Section 324 IPC. 7. The question of sentencing the accused always causes a problem when the case comes up for decision after 10 years since the incident. This fact by itself does not entitle the accused to an acquittal. If that be so, the very foundation of the judicial system will be shaken and the people will loose faith in the dispensation of justice. Looking to the totality of facts and circumstances of the case, more especially the fact that the attack was not pre-planned, a different approach can be adopted. In these circumstances, it would be in the fitness of things that instead of sending the accused to prison, the accused 5 is directed to pay a sum of ` 30,000/- to be deposited in the Court of the learned Sessions Judge Kinnaur Sessions Division at Rampur Bushehr. On deposit of such amount, the amount shall be disbursed to the injured Paras Ram PW12. This amount of fine will be deposited by the appellant on or before 30th April, 2011 failing which his sentence of imprisonment shall revive and the accused shall be taken into custody to serve out the sentence. This amount will be in addition to the fine imposed which will remain with the State. Bail bonds stand discharged. Appeal disposed of accordingly. (Dev Darshan Sud) Judge November 16th , 2010(ms)