Kamal Singh vs State of H.P.

Surinder Singh, J.—Appellant was convicted by the learned Sessions Judge for the offence punishable 451 and 333 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year u/s 451 Indian Penal Code and to pay a fine of Rs. 2000/- and rigorous imprisonment for a period of three years and pay a fine of Rs. 5000 for the offence punishable u/s 333 Indian Penal Code with the default clauses. The benefit of Section 428 of the Code of Criminal Procedure was also given. Feeling aggrieved and dissatisfied, the present appeal has been preferred by the appellant hereinafter referred to as "the Accused", to set aside the same.

Accused faced trial on the allegations that complainant Gulab Singh was posted as Chowkidar in GSSS Ghar Jarot Tehsil Jawali. On 17.3.2004 in the evening, three cows of the accused entered into the School premises. Gulab Singh aforesaid goaded them out of the premises and while doing so, on saying that accused should take care of his cattle and not allow them to destroy the flowerbeds, the accused entered school premises and gave kassi blow on the left arm of Gulab Singh, which caused bleeding injury to him. Complainant informed the Principal of the School who advised him to report the matter to the police. As such, the FIR was lodged and he was got medically examined from PW 1 Dr. Surinder Singh on the same day around 10.10 p.m. Dr. noticed the following injury on his person.

"One c.m. long laceration over upper third of left forearm was present. Fresh bleeding was present over the injury, movement of left forearm was restricted, painful and there was cracking sound on palpation. Clinically, it was a fracture of bone of left forearm." Yet in order to ascertain, X-ray examination was also done. There was fracture on ulnar bone having no callous formation.

Thus injury was opined to be grievous in nature caused within six hours. The doctor aforesaid issued the medico legal certificate Ext. PW 1/B. The doctor opined that the injury in question can be caused by kassi (spade) Ext. P1.

After completing investigation, challan was presented in the Court for the trial of the accused to which he pleaded not guilty and claimed trial. He was also examined u/s 313 of the Code of Criminal Procedure and admitted that accused was posted as Chowkidar in GSSS Ghar Jarot. The appointment letter Ext. PW 3/A has not been disputed and it was also admitted that complainant Gulab Singh was deputed on day and night duty vide order Ext. PW 3/B. But denied that he had given the blow of kassi which hit the left arm of the complainant. He pleaded innocence and false implication in the case. However, he admitted that the complainant came out driving out the cows but fell into the pit because of darkness and suffered injuries. According to him cows did not belong to him whereas complainant thought that those cattle belong to the accused.

The learned trial Court believed the prosecution evidence more particularly the injured whose statement is duly corroborated by the doctor and other witnesses in material particulars as such convicted and sentenced the accused as aforesaid.

Shri N.S. Chandel, the learned counsel for the accused vehemently argued that the prosecution has failed to prove that the complainant was appointed as Chowkidar and further that author of Ext. PW 3/B whereby he was assigned the day and night duty to guard the School property, was not proved. Therefore, it was not a case falling under the provisions of Section 333 of the Indian Penal Code. He further took pains to point out from the evidence of the prosecution that there was a pit out side the gate of the School and possibility of falling the complainant into the pit and sustaining injuries cannot be ruled out. He further argued that at the worst it was a case u/s 325 Indian Penal Code and accused deserved to be released on probation.

On the other hand, the learned Additional Advocate General supported the impugned judgment of conviction and sentence and forcefully argued that it is a case where the prosecution had proved that complainant was on day and night duty and that accused himself admitted that the complainant was working as Chowkidar and was deputed to guard the School premises. The injured had clearly stated about the incident and there is nothing to doubt his version.

PW 4 Mulkh Raj was working as lecturer in the School in GSSS Nagrota Surian. According to him during the annual examination in the month of March, 2004, he was appointed as Superintendent Examination in GSSS Ghar Jarot whereas Sushil was deputy Superintendent. Both of them were boarding in the School building itself and had been taking meals outside in the dhaba whereas complainant Gulab Singh was Chowkidar on day and night duty during the examination. He further stated that Sushil Kumar had gone to take dinner at about 6 p.m. whereas Gulab Singh complainant was in the School. While they were returning to the School at about 8 p.m. Gulab Singh met them on the way. He had injury on his arm and told that accused had assaulted him with kassi. Thereafter they took him to the police post and reported the matter. It was not quite dark. He denied that complainant sustained injuries by fall into the pit by chasing the cows.

PW 3 Gulab Singh injured is an important witness. He has substantiated the prosecution case, as aforesaid. He categorically stated that it was the accused who had given him the kassi blow on the left arm when he drove out his cattle from the school premises. Further, according to him, he had sustained fracture on the left arm and reported the matter to the police. He narrated the incident to the Principal on telephone who advised him to lodge the report. He also stated that PW 4 Mulkh Raj had met him on the way and also disclosed about the incident to him. Further, the incident had taken place at about 7 p.m. He categorically stated that when he drove out the cattle, accused was standing out side the gate digging earth with kassi. On seeing him, accused came running inside the premises and gave kassi blow on his left arm. He stated in cross-examination that all the villagers do collect soil from the school for domestic use by which pot-hole has been created at the spot outside. Though at the time of incident, it was not complete dark, there was also an electric light available in the school ground. He denied that while chasing the cows, he fell into the pit and sustained the injuries.

Doctor admitted in his cross examination that while giving history the name of accused was told by the complainant holding him responsible for the injury. According to him, though injury in question could be caused by fall in the pot-hole but also opined that kassi Ext. P1 can also cause the injury in question. The sky-grams have been proved by the Radiographer.

On the scrutiny of the aforesaid evidence, there is neither any ground to discard the statement of the injured with respect to the incident nor his statement is in conflict with other evidence on record.

Admittedly, Gulab Singh was on duty in the School at the relevant time. Cows of the accused had strayed into the school compound and destroyed the flowerbed whereas accused himself was engaged in digging the pit for collecting soil. The complainant was driving out the cattle from the school premises, in that consequence, accused came running into the campus and gave blow of kassi (Ext. P1) on his left arm. He informed PW 5 Punjab Singh and PW 8 Bansi Lal who advised him to lodge the report to the police and even PW 4 Mulkh Raj Deputy Superintendent also lends material corroboration to his version. The statement of the injured stands fully corroborated by the material on record and it stands proved that the grievous hurt was caused by the accused with kassi (Ext. P1) on the arm of the complainant, he was on duty guarding the school premises.

As already stated above, accused has admitted in his statement u/s 313 of the Code of Criminal Procedure that complainant was posted as Chowkidar in the school on day and night duty. He also admitted the office order Ext. PW 3/B which stands otherwise proved by PW 4 Mulkh Raj as well as by complainant himself in his statement which was not disputed in his cross examination. Therefore, the offence clearly falls within the purview of Section 333 Indian Penal Code, besides trespass having been committed by the accused which is an offence punishable u/s 451 Indian Penal Code. Therefore, conviction of the accused for the aforesaid offences cannot be faulted with.

In so far as the sentence of three years is concerned, in view of the above facts, and circumstances of the case, it appears to be slightly higher for the offence punishable u/s 333 Indian Penal Code, which is reduced to one year without disturbing the fine and default clause and also sentence already imposed u/s 451 Indian Penal Code, but in addition the accused is also held liable to pay a compensation to the complainant to the tune of Rs. 10,000/- which on realization shall be disbursed to Gulab Singh, failing to deposit the compensation, the learned trial Court shall realize it as fine. Accused is also entitled for the benefit of doubt u/s 428 of the Code of Criminal Procedure.

With this modification in sentence the appeal is dismissed being without any merit.

Accused is directed to be present before the learned trial Court on 18.7.2013, to serve out the sentence, failing which, the learned trial Court shall take coercive steps to commit the accused to prison to serve out the sentence and realize compensation in conformity with this judgment, as modified above. The appeal stands disposed of accordingly.