Vikas Kumar vs State Of Haryana And Anr
2023 Latest Caselaw 12442 P&H

                                                   Neutral Citation No:=2023:PHHC:113458-DB




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     IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH

                                               CRM-A-387-MA-2017 (O&M)
                                               Date of decision: 09.08.2023


Vikas Kumar


                                                                  ... Appellant


                                         Vs.

State of Haryana and others

                                                              ... Respondents


CORAM: HON'BLE MS. JUSTICE RITU BAHRI
       HON'BLE MRS. JUSTICE MANISHA BATRA

Present:-      Mr. Surinder Kumar Daaria, Advocate
               for the appellant.

               Mr. Pawan Girdhar, Addl. A.G., Haryana.

               Mr. Manoj Tanwar, Advocate
               for respondents No. 2 to 4.


RITU BAHRI, J.

CRM-7250-2017

1 Prayer in the application is for condonation of delay of 14

days in filing the present appeal. Heard. In view of the reasons

mentioned in the application, same is allowed.

2 Delay of 14 days in filing the present appeal is condoned.

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CRM-A-387-MA-2017

3             The instant appeal has been filed by the appellant-

complainant Vikas against the judgment dated 08.11.2016 passed by

learned Additional Sessions Judge, Gurgaon in Session case No. 104

of 13.12.2013 titled as State Vs. Rakesh and others, arising out of FIR

No. 932 dated 11.09.2013, registered under Sections 147, 148, 149

323 and 506 of IPC at Police Station Sohana, Gurgaon, whereby the

respondents No.2 to 4 had been held guilty for commission of

offences punishable under Sections 323 and 325 read with Section 34

of IPC but were acquitted of charges under Sections 147, 148, 307 and

149 of IPC.

4 Brief facts of the case relevant for the purpose of disposal

of this appeal are that on 08.09.2013, on receipt of an information, a

police party headed by EASI Satbir had reached at General Hospital,

Sohana and recorded statement of the injured Vikas, who disclosed

that on the same day at about 11:30 am, he was coming back to his

house on his motorbike when accused Rakesh who was standing

outside his house intercepted him by standing in front of his

motorcycle and without saying anything, he threw a water pipe which

he was holding in his hands on the head of the complainant. Then his

wife Santosh came outside and struck a blow with a stone on her head.

His brother Kishori came out and while snatching the key of his

motorcycle, he struck a blow with phawda which he was carrying in

his hands on his head. The complainant rushed towards his house and

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sometime thereafter when he along with his brother Pawan was going

towards the police station to report the matter to the police, he was

again interrupted on the way by Sandeep and Bharti daughter of

accused Rakesh. Bharti struck a blow with lathi on the head of Pawan,

accused Sandeep struck blows with lathi on his head and then all of

them started pelting stones. The complainant and his brother were

rescued by one Mahavir, who had reached there while hearing their

rescue alarms but in the meanwhile Bhavi Chand also struck a blow

with kulhari on his head. The injured were taken to the hospital. On

the basis of his statement, initially a case under Sections 147, 148,

149, 323 and 506 of IPC was registered. Investigation proceedings

were initiated. The head injury sustained by the injured Pawan was

subsequently opined to be dangerous to life by the treating doctor and

therefore, offence under Section 307 of IPC was added. The accused

Sandeep was arrested on 21.09.2013. He was interrogated and

suffered disclosure statement admitting his involvement in the crime

and got recovered one weapon of offence. The accused Rakesh and

Kishori were also arrested subsequently. They too suffered disclosure

statements and recovered other weapons of offence. Bhavi Chand and

Bharti named in the FIR were found to be innocent and were not

challaned and arrested. Their names were kept in column No. 2 of the

challan report. After completion of necessary investigation and usual

formalities, challan under Section 173 of Cr.P.C. was presented in the

Court for trial of the accused-respondents No. 2 to 4.

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5             Copies of challan were supplied to the accused-

respondents No. 2 to 4 free of costs. The case was committed to the

court of Sessions. On finding a prima facie case for commission of

offences punishable under Sections 147, 148, 323, 307 and 506 read

with Section 149 of IPC, the accused had been chargesheeted

accordingly. They pleaded not guilty to the charges and claimed trial.

6 To substantiate its case, the prosecution examined 18

witnesses in all besides relying upon documentary evidence and

thereafter, prosecution evidence was closed by learned public

prosecutor.

7 After hearing the contentions from both the sides and

appraising the evidence, the learned trial court acquitted the accused

of the charges framed against them under Sections 147, 148, 149, 307

and 506 of IPC but they were held guilty and convicted under

Sections 323 and 325 of IPC. They were sentenced to undergo

rigorous imprisonment for a period of 6 months for commission of

offence punishable under Section 323 of IPC and rigorous

imprisonment for a period of 3 years for commission of offence

punishable under Section 325 read with Section 34 of IPC and the

period of sentence already undergone by them was ordered to be set

off.

8 Feeling dissatisfied from the order of acquittal of the

respondents No.2 to 4 under Section 147, 148, 307 and 506 read with

Section 149 of IPC, the complainant has preferred this appeal.

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9           It was argued by learned counsel for the appellant that the

impugned judgment was liable to be set aside to the extent to which

the respondents No. 2 to 4 were acquitted of the charges as framed

against them. He argued that there was overwhelming evidence on

record to prove that the respondents No. 2 to 4 along with their other

family members had formed membership of an unlawful assembly

and in prosecution of common object of that unlawful assembly, they

had assaulted the appellant and his brother Pawan on 08.09.2013,

thereby causing simple as well as grevious injuries to them. The injury

sustained by PW3 Pawan brother of the appellant on his head was

declared to be dangerous to life by PW-14. The intention of the

respondents to eliminate the victim was explicit from the nature of the

injuries which they had caused on the person of the appellant and his

brother and therefore, the learned trial court had committed a grave

error in holding that there was no attempt on the part of respondents

No.2 to 4 to kill the appellants and his brother. Further, there was

overwhelming evidence on record to prove that the respondents No. 2

to 4 had criminally intimidated the appellant and his brother and had

committed the offence of rioting. He argued that the learned trial

Court did not appreciate the evidence produced on record in a proper

manner. With these broad arguments, it was submitted that the

impugned judgment was liable to be set aside to the extent to which

the respondents had been acquitted of the charges framed under the

aforementioned sections.

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10          Per contra, it was argued by learned counsel for the

respondents No.2 to 4 that no ground has been made out to interfere

with the findings given by learned trial court. He submitted that rather

it was a case where the respondents No. 2 to 4 deserved to be

acquitted of all the charges as framed against him. He stressed that the

ingredients for commission of offences punishable under Sections

147, 148 and 149 of IPC had not at all been established and the

learned trial court had committed an error even by framing charges

under these sections as against the respondents. Hence it was urged

that the respondents were rightly acquitted thereunder. He further

argued that the ingredients for commission of offence punishable

under Sections 307 and 506 of IPC had also not been established. The

defence evidence produced on record proved that the appellants and

his family had motive to falsely implicate them in this case and no

motive on the part of the respondents to assault the appellant had been

established by the prosecution. The defence evidence produced on

record prove the plea of alibi as taken by the respondent Sandeep.

While concluding, it was submitted that the learned trial Court

committed no error in acquitting the respondents of the charges under

Sections 147, 148, 149 and 307 and 506 of IPC and it was urged that

the appeal being devoid of any merits was liable to be dismissed.

11 We have heard learned counsel for both the parties at

considerable length and have given due deliberations to the

contentions as raised by them and we are of the considered opinion

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insofar as the charges under Sections 147 to 149 of IPC are concerned,

the learned trial Court had committed no error in acquitting the

respondents No. 2 to 4 of the charges under these three Sections due

to the reason that the main ingredient for proving commission of

offences punishable under these Sections is the assembly of five or

more persons so as to designate the same as an unlawful assembly,

however, in the instant case, it was only three persons i.e. the

respondents No. 2 to 4 who had been challaned as accused and the

remaining persons named in the FIR were found to be innocent.

Though it is revealed from the record that during trial the complainant

had filed an application under Section 319 of Cr.P.C, to arraign them

as additional accused but the said application had been dismissed vide

order dated 06.10.2014 as passed by learned trial Court and there is

nothing on record to suggest that any appeal had been preferred

against the said order. Therefore, it is to be assumed that only the

respondents No. 1 to 3 were the persons who had participated in the

occurrence. That being so, there was no question of an assembly of 5

or more persons being constituted to make any attempt to cause death

of the appellant and his brother or to commit any other offence by the

respondents No. 2 to 4 as such it is held that the respondent No. 2 to 4

were rightly acquitted of the charges under Sections 147, 148 and 149

of IPC or committing any offence of rioting or other offence by

forming an unlawful assembly i.e. with the aid of Section 149 of IPC

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and therefore, no ground has been made out to interfere with the

findings so recorded by learned trial Court.

12 Now coming to the charge under Section 506 of IPC. On

perusal of record, it has been revealed that even at the time of lodging

FIR, no allegation whatsoever was levelled by the appellant that either

of the respondents had criminally intimidated him or any other

member of his family. Then even on perusal of the statements of PW-3

Pawan, PW-5 Vikas i.e. appellant and PW-8 Jagmohan, an eye witness

to the occurrence, it is revealed that they did not utter even a single

word to the effect that either of the respondents No. 2 to 4 had

extended any threat to the members of complainant party or had

criminally intimidated them in any manner. In such peculiar

circumstances, when there was neither any allegation in the FIR nor

even an iota of evidence on record to prove the charge as framed

against the respondents No.2 to 4 of criminal intimidation, in our

opinion, the learned trial Court had rightly acquitted them of the said

charge and therefore, no interference in the order passed by learned

trial court to that extent is required.

13 Proceeding further and coming to the charge under

Section 307 of IPC. The allegations were that on the morning of

08.09.2013, when the complainant was coming back home from

somewhere, he was intercepted by respondent Rakesh, who had

thrown water pipe on his head and then he was assaulted by Santosh

wife, and Kishori brother of the accused, Rakesh. As per the

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allegations, the appellant along with his brother Pawan was assaulted

again by accused Sandeep and other family members namely, Bharti

and Bhavi Chand when they were going to report the matter to the

police.

14 Now it is to be seen as to whether the evidence produced

on record by the prosecution was sufficient to prove that the

respondents had assaulted the appellant and his brother Pawan on

08.09.2013 and had made an attempt to cause their death and that the

appellant and his brother had sustained injuries therein. It is important

to mention here at the cost of repetition that the respondents No. 2 to 4

have been held guilty and convicted for commission of offences

punishable under Section 323 and 325 of IPC by learned trial court

by holding that they had voluntarily caused simple as well as grievous

injuries to them and during the course of arguments, it was conceded

by learned counsel representing the respondents No.2 to 4 that they

had not preferred any appeal against the order of their conviction.

Meaning thereby that the respondents No. 2 to 4 did not challenge

their conviction on the ground that they had assaulted the appellant

and his brother. So far as the question of sustaining injuries by the

appellant and PW-3 is concerned, in our opinion, the medical evidence

produced on record to this effect in the form of testimonies of PW-4

Dr. Sudhir Chaudhary and PW-18, Dr. Sohrab, who had conducted

medico legal examination of the injured Pawan and medico legal

reports Ex.PE and Ex.PP as prepared by these witnesses respectively,

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coupled with the testimonies of PW-15 Dr. Deepak Kumar, who had

treated the injured Pawan Kumar, PW-16 Dr. Rajvir Singh, who had

conducted radiological examination of the injured Pawan on

08.09.2013 and of PW-17 Dr. Jasneet who had given emergency

treatment to the appellant proves that the appellant was diagnosed

with having sustained as many as simple injuries on his person on

08.09.2013 whereas PW-3 Pawan Kumar was opined to have

sustained simple as well as grievous injuries. One of injury sustained

by him on his head was subsequently declared to be dangerous to life

as per the opinion given by PW-15 Dr. Deepak Kumar. PW-15 Dr.

Deepak Kumar, a consultant neurosurgeon at Samvit Hospital

Gurgaon deposed that the patient Pawan Kumar had been admitted in

the hospital with history of assault with some blunt object and was

operated upon by him for head injury. He was recalled for cross-

examination and proved his report Ex.PL/1, wherein he had given an

opinion to the investigating officer that the head injury sustained by

PW 3 Pawan was dangerous in the nature. This witness however,

stated during cross examination that no reason whatsoever had been

given by him while giving opinion Ex.PL/1 for declaring the injury on

the person of PW-3 as dangerous to life. PW-3 Pawan Kumar deposed

that the respondent accused Sandeep had struck a blow with lathi on

his temple, respondents Rakesh and Kishori had struck a blow with

lathi on his legs and Bharti and Santosh (not summoned as accused)

struck blows with lathi and threw stones upon him. He did not make

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any mention that PW-5 Vikas had also been assaulted and sustained

any injuries at the hands of the respondents-accused. Then PW-5 also

deposed that the respondent accused struck a blow with lathi on the

temporal portion of injured Pawan, but PW-8 Jagmohan did not

attribute any injury whatsoever to the respondent-accused Sandeep

and stated that it was accused Rakesh who had caused injuries on the

head of PW-3 Pawan and Vikas, though PW Vikas did not depose

about sustaining any such injuries. On an overall appraisal of the

statements of PW3 Pawan Kumar, PW-5 Vikas and PW-8 Jagmohan,

we are of the considered opinion that though it stood proved from

their statements that the appellant and PW-3 Pawan Kumar had

sustained injuries but their statements did not prove beyond doubt that

the same were caused with the intention to cause death or by causing

the same any attempt had been made by the respondents No. to 4 for

causing death of the victims.

15 Further, no doubt, PW-3 had sustained an injury on his

head as per the medico legal report, however, in view of inconsistent

statements of the witnesses, it has not been established beyond doubt

that as to which particular respondent-accused had caused that injury.

More so, it has also not been established beyond doubt that there was

any intention to make an attempt to cause death of the victim Pawan

by causing such injury. More so, it is revealed from a perusal of report

Ex.PL/1 that it was given by PW-1 in a very casual manner by saying

that the injuries sustained by PW-3 Pawan were dangerous to life and

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without explaining as to which particular injury out of three injuries

by the victim was found to be dangerous to life as per him. His

testimony to the effect that he could not explain the reason as to on

what basis, he had declared the injuries on the person of PW-3 Pawan

to be dangerous, also goes to create a doubt that the injuries so

sustained by the victim was dangerous at all or not. In such

circumstances, in our opinion also, the prosecution had failed to

establish beyond doubt that the respondents made any attempt to

cause death of PW-3 Pawan by assaulting him. As such, no fault can

be found in the findings as recorded by learned trial Court for holding

the respondents guilty for commission of offences punishable under

Sections 323 and 325 of IPC instead of Section 307 of IPC.

16 As a result of this discussion, it is held that no illegality,

much less perversity has been found in the judgment of learned trial

Court warranting interference by this Court. Accordingly, finding no

merits in the appeal, same is dismissed.

(RITU BAHRI) JUDGE

(MANISHA BATRA) JUDGE

09.08.2023 pooja saini

Whether Speaking/Reasoned : Yes/No

Whether Reportable : Yes/No Neutral Citation No:=2023:PHHC:113458-DB

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