IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 614 of 2002 Reserved on: 26.02.2010 Date of decision: 16.03.2010 Raj Kumar @ Raju and another ... Appellants Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Pt. Om Parkash, Advocate. For the respondent: Mr. Vikas Rathour, Deputy Advocate General. V.K. Ahuja , J. : This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Una, dated 30.9.2002, vide which he held both the appellants guilty under Sections 307, 324/34 I.P.C. and convicted and sentence them as under:- Under Section 307 I.P.C. read with Section 34 I.P.C.: Rigorous imprisonment for 5 years and fine of Rs.2000/-. In default, simple imprisonment for six months. Under Section 324 I.P.C. read with Section 34 I.P.C.: Rigorous imprisonment for a period of six months. Both the sentences were to run concurrently. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes.. 2 Briefly stated, the facts of the case are that on 2.11.1998, at about 10.15 P.M., H.C. Bir Singh recorded the statement under Section 154 Cr.P.C. of one Vinod Kumar at District Hospital Una. In the said statement, the complainant alleged that today at about 8.30 P.M., he had gone to the shop of Bishan Dass to make purchases. He alleged that when he came out of the road Raj Kumar, Jagmohan alias Jagga, both the respondents, who are residents of Charatgarh were standing there and asked him as to what he had told to one Avtar. He told that he had not talked with Avtar. At this, Raju caught hold of him from neck and Jaggo gave a blow on his left chest with a sharpedged weapon. He raised an alarm and shopkeeper Bishan Dass and one Rattan Chand rescued him and while rescuing Bishan Dass sustained an injury in his chest. It was alleged that the respondents had given the beatings to the complainant to take his life. The Police Officer had gone to the District Hospital Una and recorded the statement of complainant on receiving telephonic message that one person in an injured position has been admitted in the hospital. On this statement, a case was registered and after investigation, the challan was filed before the Court of learned Judicial Magistrate Ist Class, Court No. 2, Una, who committed the case to the learned Sessions Judge and the case was assigned to the learned trial Court, who tried the respondents, leading to their conviction as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. 3 The submissions made by the learned counsel for the appellants were that the prosecution has miserably failed to prove their case beyond any reasonable doubt in view of the contradictions in the testimony of prosecution witnesses and the infirmities in the prosecution case and as such, the guilt of the appellants was not established. I will refer to the contradictions and infirmities pointed by the learned trial Court during the course of discussion of the evidence. Coming to the evidence, the prosecution had examined the complainant/injured as PW-5. He stated that on that day he had gone at about 8.30 P.M. to the shop of Bishan Dass where both the accused were present there. Raj Kumar caught hold of his neck from back side and Jagmohan gave three knife blows on the left side of chest. He further stated that he gave 4th blow of knife below his abdomen. He raised hue and cry and Bishan Dass, shopkeeper saved him. He stated that while separating him Bishan Dass also suffered a knife blow. He further stated that the blood oozed out from his injury and had fallen on the ground He was taken to Una Hospital by Bishan Dass, where he made a statement under Section 154 Cr.P.C. Ext. PW5/A. He was advised by the Doctor to be taken to P.G.I. and he was taken to Chandigarh where he remained admitted from 3.11.1998 to 14.11.1998. He further stated that his blood stained clothes are Pant Ext.P-2, Parna Ext.P-3 and underwear Ext.P-4. He further stated that the shirt was thrown away by the Doctor at PGI and the same could not be kept by him. In regard to knife Ext. P-1, he has stated that it is similar with which he was given blows. In cross-examination, he admitted that there are some 4 more shops adjoining to the shop of Bishan Dass. He also admitted that there is an open verandah and then a public road, but nothing could be brought on record to show that any of the persons were present at those shops or any shopkeeper apart from Bishan Dass was present or rescued him. He clearly stated that no shopkeeper from the nearby shop came there for his rescue. He admitted that the shops were open but he does not know about the customers, if any. It was not established as to which of the shopkeeper was present there or may have witnessed the occurrence. PW-6 Bishan Dass, shopkeeper has materially corroborated the statement of the complainant/injured PW-5 Vinod Kumar. He clearly stated that Raj Kumar had caught hold of complainant from both the arms, while Jagmohan Singh took out a ‘Churra’ and inflicted blows of it on Vinod Kumar. He rushed to that site and while separating them, suffered injuries on his chest and right elbow joint. He brought the injured to the hospital at Una, where from he was referred to P.G.I. Chandigarh and he went back to his house. He stated that his statement was recorded on the next day, that is, without any delay. In cross-examination, he admitted that at the time of occurrence one Sagli Ram and Rattan Chand were sitting in the same Verandah and the occurrence had taken place on the Verandah in front of his shop. This witness has admitted the presence of two persons at that time, but the Investigating Officer did not associate those persons, since their names may not have been told to the police. However, these witnesses could have been produced by the accused in their defence to substantiate that no occurrence had taken place, but the mere fact that they were not 5 examined and it does not lead to draw an adverse inference against the prosecution. From the above discussion, it is clear that the statement of complainant has been corroborated by PW-6. There is nothing on record to suggest or to prove that any enmity between the complainant and PW-6 Bishan Dass and accused persons so as to falsely implicate the accused. No suggestions were given to show that the accused persons have been falsely implicated by the complainant or eye witness. The above statements have been fully corroborated by the statement of PW-1 Dr. V.K. Raizada, who had examined the injured on the same day, at about 9.30 P.M. and found three injuries on the person of the complainant, which were incised wounds. These injuries tallied with the description given by the complainant in his statement made in Court. He stated that the nature of injuries was simple. The probable duration was within six hours. It has also been stated that the accused used sharpedged weapon, which weapon as per the statement of complainant was knife or ’Churra’. This evidence has been fully corroborated by other witnesses, whose statements are not very material and are, therefore, not being referred to. During the course of arguments, the first point taken by the learned counsel for the appellants was that the Medical Officer who firstly examined the injured PW-1 Dr. V.K. Raizada has found three injuries on the person of the injured, while PW-10 Dr. R. Singh, who examined the injured at P.G.I., to which place the injured was referred, has found four injuries. It was submitted 6 that once there were three injuries on the person of the injured, how there could be fourth injury, which clearly shows that this injury was not sustained by the injured in the quarrel that took place. This plea has been considered by the learned trial Court also in its impugned judgment. The learned trial Court observed that the Doctor may have not noticed the same since blood was coming from the injury and since it was covered and accordingly, it was observed that there is no contradiction in the testimonies of the two Medical Officers examined. A perusal of the statement of PW-1 Dr. V.K. Raizada shows that he had given the detail description of the injuries as observed by him and the Medical Officer who treated the injured at PGI Chandigarh subsequently has not referred to all the details of the injuries or their dimension, but simply observed that first was a diaphagram injury, second was large intestine and third was multiple injury and also observed that there was injury to the left ilac vein. He had clearly stated that all these injuries were repaired. The statement of the Medical Officer who examined firstly in regard to the injuries has to be relied upon in preference to the second Medical Officer, who treated the injured at P.G.I. Chandigarh subsequently and he has not issued any MLC. He has given a case summary Ext. PW10/A giving the details of the injuries. I do not find any contradiction so as to hold that the prosecution case becomes doubtful for this reason only. This question has been met by the learned Trial Court during the course of arguments before it and it cannot be termed as contradiction to disbelieve the prosecution 7 story. The submissions made by the learned counsel for the appellants are repelled being devoid of any force. Apart from the above, it is also clear that PW-1 Dr. V.K. Raizada had been recalled for further examination on a subsequent date, but no such questions were put up to him as to how he failed to observe that there was any injury No. 4 as observed by the Medical Officer at P.G.I. or there was any contradiction. Therefore, there is no substance in the arguments raised in this behalf. The learned counsel for the appellants had also raised a plea that there was a contradiction since PW-1 Dr. V.K. Raizada has stated that he never informed the police about the admission of the injured, though it has come up in the testimony of PW-7 H.C. Bir Singh who was posted as Investigating Officer, P.P. City Una that a telephonic message was received in the Police Post from the Medical Officer, District Hospital Una, then he went there. The Police Officer PW-7 H.C. Bir Singh had reached the hospital only on receiving the telephonic message made by the Medical Officer personally or from the Hospital and the mere fact that PW-1 Dr. V.K. Raizada stated that after about more than 3 years that he had not given any telephonic call, does not make the prosecution story doubtful. The Medical Officer may not have given the phone call personally but the fact remains that the said information was received from the hospital as recorded by PW-7 vide Rapat No. 17 and as such, there is no contradiction in the eyes of law. No other specific point was raised during the course of arguments except that the injury cannot be termed as dangerous to life and conviction under 8 Section 307 I.P.C. was not sustainable. To substantiate his plea, the learned counsel for the appellant has relied upon the following decisions. The decision in Madan Lal Vs. State of Himachal Pradesh, 1990 CRI. L.J. 310, was relied upon. The observations made in Paras 28 and 29 are relevant and are being reproduced below: “Where the injuries although many in number, were simple in nature, except one injury which too was not on vital part of the body of the injured, and there was not imminent danger to his life due to the said injuries, the conviction under S. 37 of Penal Code was converted into one under S. 324 of the Code. Paras 18 and 19 are also relevant and are being reproduced below:- The injuries caused to the complainant were not imminently dangerous nor caused on the vital part of the body. At best, it can be said that there could be some remote chance of their becoming dangerous to life or becoming sufficient, in ordinary course of nature, to cause the death of the complainant, in case medical aid was not rendered. Danger to life from an injury should be imminent to constitute it as a dangerous one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing imminent danger.” The decision in Ajay Sharma Vs. State of Rajasthan, 1998 CRI. L.J. 4590, shows that the accused alleged to have caught hold of deceased and exhorted main accused to strike him. 9 On such exhortation, main accused inflicting kirpan blows on person of deceased. It was observed that there is nothing that the accused had common intention to kill the deceased and hence, the conviction of accused under Section 302/34 was altered to one under Section 324 I.P.C. on the basis of the facts of the case. On appraisal of the evidence led by the prosecution, it is clear that there is statement of the complainant coupled with the testimony of eye witnesses duly corroborated by the testimony of the Medical Officer, who has clearly stated as PW-1 that these injuries were dangerous to life. It is true that the Medical Officer has stated that these injuries were dangerous to life and this fact was also mentioned by the Medical Officer in the MLC Ext.PW1/A, which shows that these injuries were dangerous to life keeping in view the nature of the injury and the portion, these were inflicted on the chest and abdomen, it cannot be said that the appellants had no intention to kill the injured and intention has to be gathered from the facts and circumstances of the case, the manner in which these injuries were inflicted and the portion of the body. The Medical Officer has also opined that these were sufficient to cause the death of the injured and as such, I find no infirmity in upholding the findings of the learned trial Court holding the appellants guilty under Sections 307 and 324 I.P.C. The last submission made by the learned counsel for the appellants in the alternative was that in case his submissions do not find favour, some lenient view be taken. A perusal of the record shows that the appellants were convicted for a period of 5 years under Section 307/34 I.P.C. The age of the appellants as mentioned in 10 the judgment at that time was 26/34 years respectively and both of them were married persons. The occurrence had taken place in the year 1998 and more than ten years have elapsed since the date of the occurrence. The appellant may also had been under mental pressure that their appeal is pending which was filed in the year 2002. Keeping in view the facts and the circumstances of the case, I am of the opinion that the sentence imposed under Section 307 I.P.C. deserves to be reduced from 5 years to 3 years and the same is reduced accordingly and the remaining sentence of fine imposed for offence under Section 307 I.P.C. or conviction awarded under Section 324 I.P.C. are maintained. The appeal filed by the appellants is partly accepted as detailed above. Fresh warrants shall be issued by the learned trial Court, who shall take steps that the appellants surrender to it, failing which, non-bailabale warrants shall be issued to them by the learned trial Court under intimation to this Court. The fine as per report had been deposited before this Court and the receipt shall be produced before the learned trial Court by the appellants. The appeal filed by the appellants is partly allowed, as derailed above. ( V.K. Ahuja ), March 16, 2010 Judge (BSS) 11