Narayan Singh vs State Of Himachal Pradesh
2021 Latest Caselaw 4477 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                       ON THE 10th DAY OF SEPTEMBER, 2021




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        BEFORE HON'BLE MR. JUSTICE ANOOP CHITKARA

                    CRIMINAL REVISION No. 253 of 2012





    BETWEEN:-

    NARAYAN SINGH
    S/O SHRI DURGA RAM




    R/O VILL. GOTHAM,
    P.O. PAURI KOTHI,
    SUB-TEHSIL NIHARI,
    DISTRICT MANDI (H.P.)
                       r                                    .... APPELLANT

    (BY SHRI H.S. RANGRA, ADVOCATE)

    AND



    STATE OF HIMACHAL PRADESH
                                                          .... RESPONDENT




    (BY SHRI NAND LAL THAKUR,
    ADDITIONAL ADVOCATE GENERAL,





    SHRI KUNAL THAKUR, DEPUTY
    ADVOCATE GENERAL,
    SHRI RAM LAL THAKUR &





    SHRI SUNNY DHATWALIA,
    ASSISTANT ADVOCATES GENERAL)

    Reserved on :      9th September, 2021
    Decided on :       10th September, 2021.


          This petition coming on for hearing this day, the Court passed the

    following:




                                               ::: Downloaded on - 31/01/2022 23:03:12 :::CIS
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                              JUDGMENT

FIR NUMBER 176 of 2006, dated 19.11.2006, registered at Police Station, Gohar, District Mandi, H.P., under Section

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317 & 323 IPC.

Trial Court Case 596-1/2006, Decided on 18.11.2008 by learned Sub

Number Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi whereby the learned Magistrate convicted and sentenced the accused to undergo simple imprisonment for six months and to pay a fine of Rs.500/- under Section 323 IPC.

First

appellate Criminal appeal No.53 of 2008, decided on Court number 3.9.2012, by learned Sessions Judge, Mandi, whereby the appeal of the appellant was partly

allowed and granted the benefit under Section 4 of

the Probation of Offenders Act, on the condition that he must furnish the requisite bonds within a month, failing which the order shall deemed to have been vacated and the appeal dismissed.

Challenging the dismissal of appeal by Sessions Court upholding

the conviction of the accused for commission of offence punishable under Section 323 IPC by Sub Divisional Judicial Magistrate, the convict

has come up before this Court by filing the present revision petition.

2. Rewati Devi PW-2, Pradhan, Gram Panchayat, Gharot, informed the police official that the accused is married to Kesari Devi. The accused was residing in the matrimonial house of Kesari Devi as 'Gharjawain' because she had no siblings. The informer further stated that Kesari Devi had three sons aged 10 years, 8 years and 4 years. She further stated that Kesari Devi is suffering from tuberculoses and was hospitalized. Prior to Narayan Singh's marriage with Kesari Devi, he had already performed marriage and his wife stays separately. Pradhan

informed that Narayan Singh did not take care of his sons. His house is in edge of the forest and would leave the children to fend at their own. He would brutally beat them and on numerous occasions, the Panchayat

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tried to pursuade him to mend his ways, but he did not. This information was recorded vide memo Ex.PW-2/A. Based on this memo, the police

registered FIR Ex.PW-6/B captioned above. After completion of the investigation the officer incharge of the police station launched prosecution for the offences punishable under Section 323, 317 IPC, by

filing report under Section 173(2) Cr.P.C.

4. Vide order dated 5.7.2007, learned Sub Divisional Judicial

Magistrate framed charges against the accused for the offences

punishable under Section 317 and 323 IPC, to which he did not plead guilty and claimed trial. During the trial, the prosecution examined son of Kesari Devi, Gulzari @ Gagu Ram, child PW-6. Another witness

examined was Rewati Devi, PW-8. Apart from these material witnesses, the prosecution also examined other witnesses. However, evidence of

few of them are hearsay in nature and other are formal. The prosecution

also examined the doctor as PW-1, who has examined the child medically.

5. The accused in his statement recorded under Section 313 Cr.P.C., although denied all the allegations but did not adduce any evidence in defence.

6. Vide judgment dated 18.11.2008, learned trial Court did not find the accused guilty of offence punishable under Section 317 IPC, but found him guilty for the offence punishable under Section 323 IPC and sentenced him to undergo simple imprisonment for six months as captioned above.

7. The convict challenged the said judgment of conviction by filing an appeal before Sessions Court, Mandi. Vide judgment dated 3.9.2012, learned Sessions Judge, dismissed the appeal. However, learned Sessions

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Judge partly allowed the appeal and granted the benefit under Section 4 of the Probation of Offenders Act, on the condition that he must furnish

the requisite bonds within a month, failing which the order shall be deemed to have been vacated and the appeal dismissed.

8. The accused did not comply with the conditional relief given by the appellate Court and as such he was arrested.

9.

While in custody, the convict filed the present revision petition

before this Court on the grounds that the orders are incorrect and illegal.

10. Vide order dated 17.12.2012, a coordinate Bench of this Court

suspended the sentence and ordered the release of the petitioner from custody.

11. I have heard learned counsel for the parties and gone through the

records.

12. The prosecution examined the injured child Gulzari @ Gagu Ram

as PW-6. Learned trial Court verified his ability to understand the oath and after assurance recorded his statement on oath. In the examination in chief, the child did not support the case of the prosecution and stated that his father would visit home and never let them stay alone. After that the witness was declared hostile and the question put by the public prosecutor, he supported the prosecution. He admitted the case of the prosecution that his father would leave them alone without cooking food and they have to eat uncooked food. The witness also admitted the suggestion of learned public prosecutor that his father would beat all the

children. He also admitted that once his father had given beating to him after that he even did not provide first aid. He further admitted that he was medically examined and after that he was in orphanage. In cross-

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examination, the child admitted that his grand parents take proper care of him. He further admitted that his grand parents have kept the children in

orphanage. He also admitted the suggestion that when his mother was admitted in hospital, his father would attend her in the hospital and whenever his father was at home, he would provide food and water to

them. He denied the suggestion of learned defence counsel that his father did not give beatings to him.

13. The prosecution examined the doctor, who had conducted medical

examination of the child as PW-1. The doctor noticed five injuries, which were due to beatings. Thus the doctor corroborates the allegations of the child that his father had given him beatings. The prosecution

examined Rewati, wife of Chandermani, as PW-8. She was neighbour of the accused and the children. She stated that when she had gone to fetch

wood from the forest, then PW-6 Gulzari met her and he was crying

because of pain. On this she informed her husband on phone and then they called Pradhan. She testified that the accused would leave the

children alone at home and also give beatings to them. In her cross- examination, the defence could not dent her credibility. In fact she stated that she had seen the accused beating children near creek.

14. The analysis of the above evidence reveals that the testimony of PW-6 Gulzari is credible and is corroborated by doctor PW-1 and Rewati PW-8. Given above, the prosecution has able to prove the case of simple hurt punishable under Section 323 IPC.

15. Mr. H.S. Rangra, Advocate learned counsel for the petitioner argued that at the time of incident in the year 2006, the accused was 50 years of age. As on today, he is around 65 years of age and is a senior

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citizen. Learned counsel further submitted that he is so poor, that he could not even furnish the bonds for probation and was eventually

arrested and had undergone around one and half months of sentence. Learned counsel prays that the sentence be reduced to already undergone.

16. Given that the learned appellate Court had granted the benefit to the convict under the Probation of Offenders Act, which he could not avail,

speaks about his mental and financial condition. Moreover, the incident

pertains to the year 2006. At that time the son was aged 10 years and in the examination-in-chief the son had not supported the case of the prosecution. Thus, in the entirety of facts and circumstances peculiar to

this case, I am of the considered opinion that the sentence of imprisonment be reduced to the sentence, which he had already

undergone. Consequently, the petition is partly allowed and the

conviction under Section 323 IPC is upheld. However, the sentence of imprisonment is reduced to already undergone by the accused.

Bail bonds are cancelled and discharged. Pending application(s), if any, also stand closed.

(Anoop Chitkara) Judge.

September 10, 2021 (ps).