Ashok Kumar vs State of H.P. State of H.P. Vs Ashok Kumar and Another

Surjit Singh, J.—By means of this judgment, two Criminal Appeals, particulars whereof are given in the heading, are being disposed of, as both the appeals are directed against the same judgment, i.e. judgment dated 16th May, 2000, of learned Additional District Judge, Mandi.

Appeal No. 332 of 2000 has been filed by Ashok Kumar, who has been convicted of offence, u/s 325 of the Indian Penal code and sentenced to undergo rigorous imprisonment for one year and to pay fine of `2,000/-, in default of payment of fine to undergo simple imprisonment for a further period of two months. Other appeal, i.e. Criminal Appeal No. 498 of 2000, has been filed by the State, seeking conviction of Ashok Kumar, for offence u/s 307 of the Indian Penal Code, instead of Section 325 of the Indian Penal Code, and also the acquittal of another accused, namely Dilbagh Singh, impleaded as respondent No. 2 in the aforesaid Appeal No. 498 of 2000, who was also charged with offence, u/s 307 of the Indian Penal Code.

Facts relevant for disposal of the two appeals may be noticed. On 20th June, 1995, when Dharam Singh (PW-11) was going to his fields, around 6.15 in the morning, to pluck lady-fingers and reached near the grinding machine of one Amar Singh (father of Ashok Kumar), he saw Amar Singh standing near his grinding machine. Dharam Singh was being followed by his brother Raj Kumar (PW-9). Raj Kumar confronted Amar Singh as to why he had constructed a pucca retaining wall near the nullah, as the same was likely to cause erosion of his field on the bank of that nullah. Amar Singh allegedly told Raj Kumar that he had already constructed the retaining wall and he (Raj Kumar) and his family members were free to take whatever action they intended. In the meanwhile, Ashok Kumar son of Amar Singh appeared there, with a knife in his hand. He dealt two blows of knife on the left side of the chest of Raj Kumar and also stabbed him in the abdomen. When Dharam Singh tried to intervene, he was dealt a blow on his forehead with a Danda, as a result of which he sustained bleeding injury. He also sustained another injury on one of his fingers.

Raj Kumar was taken to Primary Health Centre at Baldwara, on a scooter. He was medically examined by PW-1 Dr. Virender Thakur. He was referred to Zonal Hospital Mandi, for management of the injury in the abdomen. There a surgical operation was conducted. Injuries on the chest were opined to be simple in nature, while the injury in the abdomen was opined to be dangerous to life and, hence, grievous. Dharam Singh was also medically examined. Two injuries, one on the forehead and another on little finger of the left hand, were noticed.

Case was formally registered against Ashok Kumar and his cousin Dilbagh Singh. Both of them were challaned, u/s 307 and 324, read with Section 34 of the Indian Penal Code. On case being committed to the Sessions Court, Ashok Kumar and Dilbagh Singh were charged with the aforesaid offences. They pleaded not guilty and were, therefore, put on trial.

Prosecution examined two doctors, namely PW-1 Dr. Virender Thakur of Primary Health Centre Baldwara and PW-2 Dr. L.D. Vaidya of Zonal Hospital Mandi, besides the victims and an independent witness of the occurrence, to bring the charge home to the accused.

Plea raised by Ashok Kumar and his cousin Dilbagh Singh was that as a matter of fact they and Amar Singh (the father of Ashok Kumar) were assaulted by Raj Kumar, his brother Dharam Singh and other members of their family, when they were passing through the courtyard of Mehar Singh and that they were dealt Danda blows on different parts of their bodies, as a result of which they sustained injuries. They stated that they got themselves medically examined soon after the incident and also lodged report with the police at 8.30 a.m., on the very day of the occurrence and on the basis of their report, Dharam Singh, Raj Kumar and some other members of their family have been challaned, u/s 147, 148, 323, read with Section 149 of the Indian Penal Code. According to them, the incident took place not near the grinding machine of Amar Singh, as alleged by the injured, but in the courtyard of Mehar Singh and his daughter-in-law Veena, which is away from the site of the grinding machine.

Trial Court concluded that Ashok Kumar (appellant in Criminal Appeal No. 332 of 2000) was guilty of voluntarily causing grievous hurt to Raj Kumar and consequently convicted him of offence, u/s 325 of the Indian Penal Code and sentenced him, as aforesaid. Second accused Dilbagh Singh, cousin of Ashok Kumar, was held to be not guilty and consequently acquitted.

We have heard the learned Senior Additional Advocate General as also the learned Counsel representing Ashok Kumar and Dilbagh Singh.

In the earliest version, which was given to the police by Dharam Singh, vide report Ex. PK, place of occurrence is recorded to be the passage in front of the grinding machine of Amar Singh, the father of Ashok Kumar. However, while in the witness-box, both the injured, namely Dharam Singh and Raj Kumar as also an independent witness examined by them, namely Sarswati Devi, testified that the place of occurrence was the courtyard of Veena, a daughter-in-law of Mehar Singh. This place of occurrence, testified by the injured and the independent witness Sarswati Devi, corresponds with the place of occurrence mentioned in the report, which Amar Singh, father of Ashok Kumar, lodged with the police and with respect to which a challan has been filed against Dharam Singh and Raj Kumar, per testimony of PW-12 Gian Singh, Investigating Officer of the present case as also the case, which was registered against Dharam Singh and Raj Kumar and several other persons, on the report of Amar Singh.

Also, we find a large number of contradictions in the testimony of Dharam Singh and Raj Kumar and the earliest version given by Dharam Singh as also the statement made by Dharam Singh, u/s 161 of the Code of Criminal Procedure, which is Mark ''X'', with which he was duly confronted. For example, according to the earliest version, the incident took place when Dharam Singh was going to pluck and collect lady-fingers from the field, but while in the witness-box he stated that the incident took place when he was returning after plucking lady fingers. Again, as already noticed, place of occurrence, as per the earliest version, is the passage in front of grinding machine of Amar Singh, but according to the statements as also the site plan Ex. PR, incident took place in the courtyard of Veena Kumari. Further, according to the earliest version, weapon used by Dilbagh Singh was a Drat, but while in the witness-box, Dharam Singh (PW-9) stated that weapon used by Dilbagh Singh was a Danda. Alleged independent witness Sarswati Devi (PW-10) is not named in the FIR as a witness.

In view of the abovestated position, we find no merit in the appeal (Cr.A No. 498 of 2000) filed by the State. The same is, therefore, dismissed. Appeal (Cr.A No. 332 of 2000) filed by Ashok Kumar, challenging his conviction and sentence, for offence u/s 325 of the Indian Penal Code, is accepted. His conviction and sentence for the aforesaid offences are set aside and he is acquitted.

Both the appeals stand disposed of accordingly.