IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 425/2009 Date of decision: 9. 9. 2010 Ghanshyam @ Geeka …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellant: Mr. Vinay Thakur, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. Surinder Singh, J. (Oral) Appellant, along with co-accused Anchal Parmar, Bhuru @ Bishal Gautam and Shammu @ Shammi Kumar, were charge-sheeted and tried for the offence punishable under Sections 452,307,326,506 read with Section 34 Indian Penal Code. After the complete trial, only appellant Ghanshayam alias Geeka was convicted and sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- for 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - offence punishable under Section 326 Indian Penal Code and to undergo imprisonment for 1 (one) year and to pay a fine of Rs.5000/- under Section 506 Indian Penal Code with default clause, whereas his co-accused were acquitted. 2. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the instant appeal has been filed by the convict-appellant. 3. In short, prosecution story, as emerges from the evidence on record, can be stated thus. 3(a). PW3 Balbir Soni injured was running an Industry at Pansai-Chowk at Kangu in District Hamirpur. He had some money transactions with the younger brother of the appellant. Since he did not repay the amount, as such at an earlier occasion appellant had given him slaps. 3(b). On 2.2.2008 at about 10.30 p.m Shri Balbir Soni aforesaid was taking dinner in the dhaba of PW10 Madan Lal at Kangu. The appellant along with his co- accused came there. Co-accused Shammu started abusing him and pushed him. The appellant is alleged to have given two - 3 - darat blows on the head of Balbir Soni from his back side. 3c). PW5 Vijay Kumar and PW6 Rajesh Kumar, who were also present in the Dhaba rescued him. The appellant along with his accomplices while fleeing from the scene, threatened the injured Balbir Soni to do away with his life. Injuries caused to Balbir Soni started bleeding. Immediately Vijay Kumar and Rajesh Kumar aforesaid shifted him to C.H.C. Nadaun where PW4 Dr. Kiran Kumar examined him and noticed the following injures on the head of the injured. “1.Long sharp cut wound was present over scalp running from the left central region of scalp to posterior side. The size was 32 cm X ½ cm. Margins were well demarcated. Fresh blood was oozing out from the wound. Some clotted blood was also present over the wound. Depth of the wound was not measured. 2. A long sharp cut wound was present over the scalp running from the central top of scalp to posterior region. The size was 23cm X ½ cm, margins were well demarcated. Fresh blood was oozing out from the wound. Some clotted blood was also present over the wound. Depth of the wound was not measured”. - 4 - The Doctor had also advised C.T. scan of the head. 4. The injuries aforesaid were opined to have been caused within 0 to 10 hours duration with a sharp edged weapon. He referred the injured for CT scan. On the basis of the report on Ext. PW4/B doctor opined the fracture of right parietal bone. So injuries No. 1 and 2 both, were opined to be grievous in nature and he issued Medico-Legal Certificate Ext. PW4/F. Injured was referred by him to the Zonal Hospital Hamirpur for further management of the injuries. 5. Information was given to the Police and PW16 S.I. Jasbir Singh was deputed to the Hospital. He moved the application Ext. PW4/C on 2.2.2008 to PW4 Dr. Kiran Kumar whether the injured was fit to make the statement. On the same date at 11.50 a.m, he found the injured fit to make the statement. PW 16 S.I. Jasbir Singh recorded the statement Ext. PW3/A of the injured, under Section 154 of the Code of Criminal Procedure, as per version given by him. Ruka was sent for the registration of the case on the basis - 5 - of which FIR Ext. PW11/B was registered. The said police officer visited the spot and prepared the site plan Ext. PW16/A and also took the photographs Ext. PW16/B-1 to PW16/B-5. 6. Injured was admitted in the Hospital. The delay in causing the CT scan was attributed to the non-availability of the CT scan films which were out of stock w.e.f. 4.2.2008. 7. PW2 Dr. D.P. Swami, on the application of the Police Ext. PW2/A with reference to the MLC No. 26/2008 dated 2.2.2008 of Balbir Soni injured, who was attended by Dr. Kiran Kumar aforesaid at Nadaun, gave the opinion in writing Ext. PW2/B as follows:- “1. The opinion given by the Examining Doctor was correct as per the MLC record. 2. No evidence of serious condition of victim was seen in this case, BP and pulse were found in general condition and normal. 3. No evidence of unconsciousness with poor general condition was seen as BP and pulse were normal. 4. No evidence of haemorrhagic shock and blood loss shock was found. Hence in my opinion, it was a fit case of - 6 - grievous injury for, that is, injury No. 1 endangerous to life-access to interior of skull and injury No. 2 was fracture of skull”. 8. On 5.2.2008, injured had handed over the blood stained shirt Ext. P1 and Inner Ext. P2 to PW16 S.I Jasbir Singh which were taken into possession vide memo Ext. PW3/B. 9. Appellant was interrogated on 11.2.2008. He produced the alleged weapon of offence Ext. P3 which was taken into possession vide memo Ext. PW3/C. The appellant was arrested. 10. After recording the statements of the witnesses and completing the investigation, challan was presented in the Court against the appellant and his co-accused for their trial. The appellant along with his co-accused abjured their guilt and claimed trial. 11. Prosecution examined its witnesses to prove the case and appellant along with his co-accused were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon them were put to each - 7 - of them. Their case was denial simplicitor and pleaded innocence. 12. When called upon to enter into defence, no evidence in defence was led by them. At the end of the trial, the appellant was convicted and sentenced as aforesaid and his co-accused were acquitted. 13. Shri Vinay Thakur, learned counsel for the appellant vehemently argued that there are material contradictions and discrepancies in the statements of the injured and the eye witnesses and the learned trial Court has attached undue importance to them for convicting the appellant. According to him if the evidence on record is looked into in the right perspective, there are grounds for acquittal of the appellant. He alternatively prayed for reduction in sentence which according to him has been too harsh keeping in view his age. 14. Contra Shri A.K. Bansal learned Additional Advocate General has supported the impugned judgment of conviction and forcefully advanced the arguments with respect to the adequacy of the sentence - 8 - imposed by the learned trial Court on the appellant. 15. I have given my thoughtful consideration to the rival contention of the parties and have carefully scanned and reappraised the evidence on record. 16. In the instant case statement of PW3 Balbir Soni is of a prime importance because he being an injured witness, who knew the assailant and has also seen the appellant inflicting injuries with a sharp-edged weapon to him. He has explained the background and cause of attack on him by the appellant. He testified that prior to the alleged incident, he had slapped the brother of the appellant because of some dispute with respect to money transaction and that was the reason, as explained by PW3 aforesaid which caused annoyance to the appellant. He also categorically stated that the appellant had attacked on him from behind with a darat on his head in the presence of PW5 Vijay Kumar and PW6 Rajesh Kumar who were also present in the Dhaba of PW10 Madan Lal taking dinner. It was because of their intervention that he could be saved - 9 - and even before fleeing from the spot, appellant had threatened him with dire consequences. PW5 and PW6 both have supported this version. PW5 Vijay Kumar categorically stated that the appellant had given two darat blows on the head of Balbir Soni from behind as he was going to fall down in the meantime, he with the help of Rajesh (PW6) gave him a support in the meantime appellant ran-away. Thereafter the injured was taken to the Hospital. 17. Presence of the appellant on the spot is not denied rather the defence was put to PW3 though denied that the appellant had asked him the reason to assault his younger brother earlier, upon which the complainant allegedly picked up a darat from the dhaba and assaulted the appellant, thus in order to ward off the assault, the darat hit the complainant himself. The story so suggested to this witness is quite improbable for the reasons that there are two sharp edged injuries on the head of injured and even in the statement under Section 313 of the Code of Criminal Procedure appellant did - 10 - not explain as to how the injured sustained the injuries. The plea of self defence as propounded is also not made out from the evidence on record also for the reasons that the appellant was the aggressor. He had attacked PW3 Balbir Soni on his head with sharp edged weapon. 18. Further PW10 Madan Lal, in whose dhaba injured and the other eye witnesses were taking meals has also specifically stated that the appellant had given darat blows on the head of injured Balbir Soni. Although he stated that at the time of occurrence he was busy in cooking food in the dhaba. 19. There is absolutely nothing against PW5 Vijay Kumar and PW6 Rajesh Kumar who had witnessed the alleged occurrence as to why they deposed falsely without any animosity. Therefore, in view of the above, it stands clearly proved beyond any reasonable doubt that it was the appellant and appellant alone who had caused the head injuries to Balbir Soni with the sharp edged weapon. 20. Learned counsel for the appellant also ventilated that the weapon of offence - 11 - Ext. P3 darat, was not connected with the offence charged, as the injured had denied having used the said darat. On the forensic examination also no blood stains were detected. But this plea is raised only to be rejected for the reasons that it is only a corroborative evidence and further that the injured and the alleged eye witnesses have testified that the appellant had attacked PW3 Balbir Soni on his head with a darat which is a sharp edged weapon, and the recovery of darat has been effected after about 9 days on the production of appellant when he was arrested. It is not expected that after such a long time darat would have the blood stains and further when darat was in the possession of the appellant at the time of the attack, even when it was produced before the Investigating Officer. It could have also been changed by him. This is what PW3 injured witness has stated. But the statement of the aforesaid witness coupled with the statements of the doctors that the injuries in question were with the sharp-edged weapon clearly established that it was darat like object - 12 - which was used by the appellant to inflict injuries on the head of the injured (PW3). 21. Learned counsel for the appellant has also advanced the argument that both these alleged eye witnesses were involved in a criminal case and their statements are not to be blindly followed. While appreciating the evidence I have kept this in my mind. The injured has admitted that PW6 Rajesh remained in the police custody in the famous ‘India’s most wanted’ case but this fact has been denied by PW6. According to him, it was his friend Ashok Kumar and the police questioned him because of his affinity with Ashok Kumar. This fact is not enough to cause any doubt in their testimonies for the reasons that their presence in the dhaba, at the relevant time is not disputed rather it stands established. When their presence in the dhaba stands proved and they testified in the court with respect to the incident and in their cross examination they could not be shattered, their testimonies can safely be acted upon like any other eye witness to the incident. - 13 - 22. Further PW4 Dr. Kiran Kumar had noticed two injuries on the skull of the injured. The dimension of one of which is given as 32 cm X ½ cm. with sharp cut. Margins were found well demarcated, and the second injury was with sharp cut wound on the scalp was running from the central top of scalp to posterior region. Its size was 23cm X ½ cm, margins were well demarcated. Radiologist who had taken the CT scan gave the opinion that there was fracture of right parietal bone with 30X10 mm underlying haemorrhagic in right parietal region as per his report Ext. PW1/B which has further been endorsed by PW2 Dr. D.P. Swami and affirmed the opinion given by PW4 Dr. Kiran Kumar who had initially examined the injured and finally it was opined that it was a case of grievous hurt qua injury No. 1 which endanger life and injury No. 2 was also fracture of skull. So both the injuries have caused fracture of the skull underneath injuries with sharp-edged weapon. Further Dr. D.P. Swami opined that had the injured not been treated immediately in proper hospital he would - 14 - have died due to continuous bleeding and infection of interior environment of brain through the fracture gap. Learned trial Court took note of these two opinions on the file with respect to the injuries in question and the opinion favouring the accused by Dr. Kiran Kumar that injuries were not dangerous to life was rightly accepted by it thus the appellant was held to have committed the offence punishable under Section 326 Indian Penal Code and also under Section 506 Indian Penal Code as the deposition of PW3 Balbir Soni that the appellant while leaving the dhaba had also threatened him to do away with his life, remained unchallenged in his cross examination. Therefore, the conviction of the appellant under Sections 326 and 506 of the Indian Penal Code is upheld. 23. Insofar as the sentence part is concerned, to substantiate his point, the learned counsel for the appellant has cited A.C. Gangadhar versus State of Karnataka AIR 1998 SC 2381 and Surjit Singh vesus Nahara Ram and another 2004 SCC (Cri) 1801, the - 15 - judgments of the Supreme Court. I have examined the entire record. Except the age, no other circumstances stands established on record, for taking a lenient view. 24. In fact, criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Some times the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of - 16 - punishment and create cases of apparent injustice that are serious and widespread. Against the above background, the apex Court in Surjit Singh’s case (supra) observed:- “5.The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, “State of criminal law continues to be-as it should be- a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective - 17 - machinery or the deterrence based on factual matrix. 6. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.” 25. A.C. Gangadhar’s case (supra) cited by the learned counsel for the appellant is of no help to him as the apex court has deprecated too much leniency shown to the assailants where there was only single blow with an axe. 26. Against above factual scenario of the case in hand, I find that two blows of sharp-edged weapon were given on the skull of the injured Balbir Soni and both these injuries had caused deep fracture of the parietal bone and also taking into account the age of the appellant, in my opinion, substantive sentence imposed by the learned trial Court bit higher as such the ends of justice would be met in case 7 (seven) years imprisonment is reduced to - 18 - four and half years (4½ years) under Section 326 Indian Penal Code without disturbing the fine imposed under this sentence by the learned trial Court and the sentence under Section 506 of the Indian Penal Code. However, it is ordered that both these sentences shall run concurrently. 27. Out of the amount of fine, if stands deposited in the learned trial Court, Rs.10,000/- shall be paid by the learned trial Court to PW3 Injured Balbir Soni as compensation. 28. Ordered accordingly. The appeal stands disposed of. September 9, 2010 (Surinder Singh), (cm) Judge