IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 39 of 2008 Date of decision: 5 . 5. 2009 Amrish Rana …..Petitioner Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . No For the petitioner: Mr. Anup Chitkara, Advocate. For the respondent Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. (Oral) This jail appeal has been directed by the appellant, challenging his conviction and sentence, passed by the learned Additional Sessions Judge (Fast Tract Court) in Sessions trial No. 27-D/VII/2006, decided on 29.9.2007, whereby he was held guilty under Sections 353, 332 and 333 of the Indian Penal Code and sentenced only under Section 333 of the Indian Penal Code to undergo simple imprisonment for a period of two years and six months and also to pay a fine of Rs. 2000/- and in default of payment of fine, to further undergo simple imprisonment for a period of one month. In short, the prosecution case against the appellant has been that while undergoing the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - life sentence in District Jail, Dharamshala, in FIR No. 21 of 2000, registered in Police Station, Una, under Section 302 of the Indian Penal Code. On 26.9.2005, the appellant complained the chest pain. The Jail Doctor provided him the first-aid but it brought no respite to him. Thereafter he was taken to Zonal hospital, Dharamshala under the police escort where he remained admitted on night of 26th September,2005 and was discharged on 27th September, 2005. Thus, he was taken back to District jail under the supervision of police. At 4.10 p.m. the police left him inside the jail. When the appellant went inside the jail his entriy was made at the gate. It is alleged that he started using abusive language against PW-3 the then Superintendent of Jail. PW-2 Vikas Sharma, Jail Wardan on duty told him not to use abusive language against the Superintendent. On this, the appellant attacked and grappled with him. In this process the appellant had bitten off the right ear of said Shri Vikas Sharma. The Superintendent of Jail and Vikram Katoch, Assistant Superintendent of Jail intervened and rescued the said Warden. The bitten piece of right ear was put into the pocket by the appellant, which was taken back, lateron from him and was handed over to the victim (PW-2). PW Vikas Sharma, the injured was immediately rushed to the Hospital for the medical-aid. The police - 3 - was informed telephonically. The statement of Vikas Sharma was recorded under Section 154 of the Code of Criminal Procedure on the basis of which FIR was registered. Cut piece of the ear (Ext.P-3) of the complainant was taken into possession by the police along with his blood stained, pant shirt and banyan. The blood stained earth, plain soil from the place of occurrence was also taken into possession by the police and sent for forensic examination. The police also obtained the Medico Legal Certificate Ext. PW-1/B of PW-2 Vikash Sharma. The report of Forensic Science Laboratory Ext. P-A and Ext. P-B were received and after obtaining the duty chart and the posting orders of PW-2. After completing the investigation, the challan was presented in the court for trial of the appellant. Finding a prima facie case against the appellant for the aforesaid offences, he was accordingly charge sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal procedure. He raised the defence that on 26.9.2005 when he complained the pain in his - 4 - chest, he was examined by the jail Doctor inside the room of the jail Superintendent. Doctor gave some treatment and was asked to take rest. When he was not satisfied with the treatment, given to him as his problem had increased, then he brought it to the notice of jail Superintendent as well as other jail inmates. Thereafter, he was sent to the Hospital but it was too late as it was already 6 p.m. On 26.9.2005 when he entered the jail and went to the room of Superintendent and asked him as to why he was sent late to the Hospital, then he told him that it was on account of the fact that the Superintendent and other officials including the Doctor were unhappy with him. On this, Vikas sharma caught hold of him from his shirt. The appellant pushed him and Vikas Sharma fell down on a box and suffered injuries on account of the fall on a trunk-(Box). There after he was administered beatings with kick and fist blows by Vikash Sharma as well as two other jail officials. He further stated that he had been constantly complaining against the Jail authorities about the irregularities and quality of food, to the Sessions Judge as well as the High Court. Even he remained on hunger strike for 30 days and it was because of this fact that a false case was planted against him. - 5 - When called upon to enter into defence, the appellant did not lead any evidence in defence. At the end of the trial, he was convicted and sentenced as aforesaid, which has been assailed in this appeal on the ground that the prosecution has failed to bring home the guilt of the accused beyond a reasonable doubt and the learned trial court has wrongly placed reliance on the version of the partisan witnesses, who were inimically disposed of against him. The appellant was unrepresented in the appeal. He had requested in writing to engage a good criminal lawyer to defend him and prosecute his appeal. Vide order dated 26.2.2008 Shri Anup Chitkara, Advocate, who was already representing the appellant in two other cases, was appointed as the legal aid counsel vide order dated 5.4.2008 by this court. Shri Anup Chitkara, learned counsel for the appellant vehemently and very ably argued that the basic ingredients of the offences charged are missing in the case as the prosecution has failed to prove that the appellant had “voluntarily” caused the injuries to the complainant. He further submitted that the facts proved on record have probablized the defence raised by the appellant. Therefore, no explicit - 6 - reliance can be placed on the testimony of the official witnesses who had only given a lop-sided version because of the prejudicial attitude on account of the complaints to the higher authorities against them by the appellant. Learned counsel has also taken pain to lead me through the evidence on record and urged that this is a case where the benefit of doubt could have been given to the appellant. Contra, Shri J.S Guleria, learned Assistant Advocate General while supporting the impugned judgment of conviction and sentence argued that the testimony of the victim itself inspire confidence and further that there is also corroboration by independent source and also by circumstantial evidence on record. Therefore, there is no scope for any interference by this court. I have given my thoughtful consideration to the rival contention of the parties and have carefully and meticulously examined the evidence on record in the light of the defence taken by the appellant. PW-2 Vikas Sharma the injured is an important witness. He has testified on oath that on 27.9.2005 he was on duty since 12’O noon to 7 p.m. at the main gate of the jail. On his return at 4.10 p.m. from the Hospital, the appellant entered the jail. He made the entry of his - 7 - arrival in the Register and at that time, the appellant was using the words of abuse to the Jail Superintendent. Thereafter, he entered the room of the Superintendent. He told him not to use the abusive language. On this, the appellant attacked and scuffled with him. His right ear was bitten off by the appellant and it got cut off. PW-3 Shri O.P. Sharma, Superintendent and PW-4 Shri Vikram Katoch, rescued him. Thereafter he was taken to Hospital by Kamaljeet Wardan of the jail for treatment. He also proved his statement Ext. PW- 2/A and his signatures on the Medico Legal Certificate Ext. Pw-1/B. He further stated that his blood sample was taken by the Doctor, which was sealed in the vial Ext. P-1. He also took the cut piece of his ear Ext. P-3 to the Hospital, to which he also identified to be the same during the course of his examination in the court. Further, he identified his official dress, shirt Ext. P-1 pant Ext. P-5 and Banyan Ext. P-6 to be the same which he was wearing at the time of alleged incident and was taken into possession vide seizure Memo Ext. PW-2/B by the police. He stated that act of the appellant had caused obstruction in the performance of his official duty. In his cross-examination, he denied that the appellant told him that he wanted to talk to the Jail Superintendent as to why he was got discharged since he was suffering from the chest - 8 - pain. He denied that he did not permit the appellant to talk to the Jail Superintendent but self stated that the appellant was using abusive language to the Superintendent therefore; he took him out from his room. He denied that while pulling the appellant from the office of the Superintendent from his shirt, one of the button of his shirt got broken, on which he got slipped and had fallen on the table, which caused the said injuries. He further denied that he used to assign his personal job to the appellant, and when he did not do that, he planted a false case against him. PW-3 O.P. Sharma, Superintendent of Jail has corroborated his version in its totality. He identified the piece of ear Ext. P-3 which was chopped off by teeth bite of the appellant. In his cross-examination he stated that the appellant had complained about chest pain at 2.30 p.m. Firstly, he was taken to jail Doctor and thereafter sent to Zonal Hospital for his treatment. When he returned from the Hospital, he was in angry and aggressive mood. He denied that the appellant was not permitted to come to the room of the Superintendent but when he had made his forcible entry he was obstructed by PW-2 Vikas Sharma. He also stated that after incident, the appellant carried the cut piece of his ear inside - 9 - which was lateron collected and sent to the Hospital. PW-6 Vikram Singh Katoch, Assistant Superintendent, Jail whose office is located within the jail premises opposite to the office of Superintendent Jail stated that on hearing the loud noise, he went to the office of the Superintendent and found that PW-2 and the appellant were fighting with each other and Vikas was in his uniform. He along with O.P. Sharma started rescuing Vikas, in the mean time Vikas cried stating that his ear had been bitten off by the appellant. Thereafter Vikas was taken to the Hospital. He also proved the appointment order Ext. PW-6/A pertaining to Vikash and his further posting order Ext. PW-6/B. The abstract of the Duty Register Ext. PW-6/C and the entry of the appellant in the Jail Ext. PW-6/D and also with respect to the appellant taking him to the Hospital [Ext. PW-6/E]. In his cross-examination, he denied that in the scuffle PW-2 Vikas fell down and suffered injury by fall. He was not aware if the appellant had made an application against Vikas complaining having been ever given beatings to him and the matter was also got inquired into. PW-7 Kamaljeet Wardan was declared hostile as he did not support prosecution case but he admitted the recoveries. According to him, at the relevant time he was sleeping near the - 10 - Barrack. However he was categorical in saying and admitted that the appellant had scuffled with Vikas and his right ear was bitten off which got separated. PW-1 Dr. Anuradha Sood had medically examined PW-2 Vikas Sharma on the same day. According to her, Vikas sharma was brought to her with the alleged history being bitten by a convict in jail in such a way that a piece of the upper part of the right ear was separated from rest of the ear. On examination, she found the wound over the right ear which was causing fresh bleeding, clots were also present. The outer upper part of right ear was missing and the margin of the wound over the ear was irregular. Length was 3-4 cms and breadth was 0.5 cms. The appellant was admitted in ENT Ward for further treatment and observation. In her opinion the injury to PW-2 Vikas was grievous in nature because of the permanent disfigurement of face. The probable duration of the injury was less than 2 hours caused with tooth bite. She proved the MLC Ext. PW-1/B having given by her with respect to injured Vikas Sharma. She further stated that on 29.9.2005, she also took the blood sample of the injured on the request of the police. She stated in her cross-examination that cut piece of the ear was brought by the complainant and the injured was referred to the ENT Section. She further stated - 11 - that the injuries aforesaid can be by crush of the ear from both the sides but there is very unlikely in the present case by fall. On the reappraisal of the evidence aforesaid in my opinion, there is overwhelming evidence against the appellant on record to show that it was the appellant and appellant only who had caused tooth bite injuries to the right ear of PW-2 Vikas Sharma, who was at the relevant time discharging his official duty. Which fact has not been disputed by the appellant in the cross- examination of the witness. It stands proved on record that when appellant returned to jail from the Hospital, he was in an aggressive and angry mood and had entered into the office room of the Jail Superintendent and used abusive language against him. Said Shri Vikas Sharma had intervened and tried to take him out of the room and reprimanded him not to use the abusive language, on which the appellant got infuriated and attacked on him, which incident was witnessed by the jail Superintendent and Assistant Superintendent, Jail aforesaid. Their version lend support to the prosecution case. Further the Doctor who examined the injured confirmed it a case of tooth bite and such type of injury could not have been caused to him by a fall. Therefore, in the aforesaid circumstances, the case against the appellant - 12 - stands proved and nothing was brought on record to probablize the defence raised by the appellant. Further the contention of the learned counsel for the appellant that the prosecution has failed to prove that the appellant has “voluntarily” caused the injury, is missing is also incorrect because the word “voluntary” is defined under Section 39 of the Indian Penal Code in relation to the causation of effects and not to the doing of acts from which those effects result. It has been given a peculiar meaning in the Code differing widely from its ordinary meaning. In general, the Code makes no distinction between cases in which a man causes an effect designedly and cases in which he causes it knowingly or having reason to believe that he is likely to cause it. If the effect is a probable consequence of the means used by him, he causes it “voluntarily”, whether he really meant to cause it or not. Thus, in the instance case the appellant has knowingly or having reason to believe that he is likely to cause the said injury and this effect is a probable consequence of the means i.e. tooth bite used by him. Thus, he is said to have caused injury in question to the appellant voluntarily in discharge of his official duty. Therefore, seeing from every angle, in my considered opinion, the offence against the appellant stands fully proved - 13 - and I find no error in the impugned judgment of conviction and sentence passed by the learned trial court, as such the appeal sans merits and is accordingly dismissed. May 5, 2009 (Surinder Singh), J (cm)