Nirmla Devi (Smt.) vs State of Himachal Pradesh

Dev Darshan Sud, J.—The appellant has appealed against his conviction under Sections 328, 392, 307 read with Section 34 of the Indian Penal Code (hereinafter referred to as ''IPC''). The prosecution case in brief is that complainant Ramesh Kumar (PW13) vide his statement Ext. PK which formed the basis of F.I.R. Ext. PL stated that on 22.8.2000, he left his house situated at Preet Nagar, Jammu at around 8.40 A.M. in the morning to withdraw a sum of Rs. 27,000/- from his Bank account from the Bank Satbari for the purposes of purchasing an auto-tempo which he wanted to use for transporting children studying in his school. On the way to the bank, he met Krishan Lai accused, who was driving Maruti Van No. JK-02M-4392; he was an old acquaintance of the complainant. He asked the complainant as to where he was going whereupon he disclosed that he was going to withdraw a sum of Rs. 27,000/ - for purchasing an auto-tempo from Pathankot. At that point of time, the complainant had a sum of Rs. 4,000/- in his pocket. Accused Krishan Lai told him that he would get him a discount from an authorized auto/tempo dealer at Pathankot and that he was willing to drive him to that place. Both went to the bank where the complainant withdrew a sum of Rs. 27,000/ -. Thereafter, accused Krishan Lai took him to his house where he was offered a cup of tea. The case then proceeds that the accused took him to the house of one lady (appellant herein). He informed the complainant that this lady would also go to Pathankot and they would go there together. The accused offered a glass of water and thereafter a cup of tea after which the complainant Ramesh Kumar suspected that he had been made to ingest some intoxicant. They boarded the Van where after the complainant lost consciousness. He regained his senses/consciousness in the Civil Hospital at Dalhousie in the early hours of 24.8.2000. He had lost all the currency. The case is that the money had been looted from the complainant, he had been beaten up and dumped in a Nullah somewhere near Dalhousie.

The prosecution produced fifteen witnesses in support of its case. Both Krishan Lai and Nirmla Devi accused in this case were tried for the offences as charged. Accused Nirmala Devi absconded and Krishan Lai was convicted by judgment of the trial Court on 19.4.2002.

In order to prove its case, the Court considers the statement of Ramesh Kumar, who appeared as PW13. He substantiated the allegations which have been made by him in the First Information Report. He states in clear and unequivocal terms about the facts of proceeding to the Bank, being informed by the accused that he would get him a auto-tempo at a bargain price, proceeding to the house of Nirmla Devi where he was served with drinking water by the minor son of the appellant where after he was served a cup of tea by her Which was laced with some intoxicant. He then corroborates the fact that he found himself in the hospital in Dalhousie when he regained consciousness with his cash missing. His statement with respect to the withdrawal of money etc. has been corroborated by Ext. PW13/A which is a statement of his account with the J & K. Bank showing that a sum of Rs. 27,000/- was withdrawn by him from his bank account the date as alleged.

On the second aspect that he had been dumped in a Nullah on 23.8.2000 below the road near village Dhundiara on Pathankot-Dalhousie road, the learned Court considers the statement of PW2 Kehar Singh and PW3 Tej Ram. PW3 Tej Ram stated that on 23.8.2000 he had gone to check the maize crops sown by him in his land. He noticed one person lying in his fields at about 300 feet below the main road. He rushed to see this person and found him alive but unconscious. His eyes were bulging out and were deep red in colour. He noticed injuries on the face and neck of the complainant. He immediately lifted him on his back when another person Des Raj, who was cutting grass in his field brought the complainant to the main road with the help of PW2 Kehar Singh, they took him to a private clinic in village Nainikhad about 2 kms away from village Dhundiara. There they met PW10 Madan Lai and told him about the injured person. The doctor at the clinic administered first aid where after the complainant regained some consciousness and disclosed his name as Ramesh Kumar resident of Jammu, but he was unable to speak coherently about the entire incident as he could not narrate complete facts at one go. The injured was thereafter immediately removed to Dalhousie, first to the Police Station then to the Civil Hospital. Both these witnesses corroborated the fact that the clothes of the accused were soaked in blood. PW10 Pradhan Madan Lai supports the case of the prosecution.

The injured complainant was treated by PW12 Dr. N.K. Sood, Senior Medical Officer at Civil Hospital, Dalhousie. On examination he found, the following injuries:

Resp clear VCS-WNL, P/A-NAD, Ent: Bleeding nose (R) Nostril present with fresh clot eyes: B/O black eyes with edema (eyes) Periorbital region which is right side is more than left side. Ecchymosed of conjunctives with severely B/L congested conjunctiva which is right side more than left, pupils B/L normal, reacting to light, CNS. Patient is drowsy, semiconscious but responding to verbal command not intelligently. L/E: There is a ligation mark around the neck with multiple abrasions of skin, bruises and contusion around the ligation mark which is more prominent on front and lateral aspect of neck and dis-colouration of skin (dark) present, There are multiple abrasions on face, back of hands, arms with contusions on right arm and fore-arm. There are multiple abrasions left anterior aspect of leg/knee and back of ankle joint and heel. There are multiple abrasions right posterior aspect of leg with multiple abrasions posterior aspect of back of chest, back. L.W. 1 cm on scalp right side T.P. region with clotted blood with multiple hematomas scalp. Tenderness over posterior aspect of neck and larynx present. No fracture bone larynx/crepitus seen clinically.

He proved on record Ext. PW12/A which is the medico legal certificate and Ext. PK statement of the complainant which was recorded in his presence in the morning hours of 24.8.2000.

The prosecution case is that the accused had stayed at Kumar Hotel, Dalhousie which was proved by PW11 Naveen Kumar/ Manager of the Hotel and has proved on record the extract of the register Ext. PW11/A. He identified the accused in Court. The learned Court then refers to the entries and exhibit etc. from the barrier to show that on the day of the incident, the accused had passed through the barrier in the Maruti Van used for the crime. The recovery of currency notes of Rs. 25,000/- from the possession of the accused was also proved. It is, in these circumstances that the accused was sentenced as aforesaid.

I have heard Sh. Ashok Sharma, Advocate, learned amicus curiae appearing for the appellant. Learned Counsel submits that the evidence of the prosecution does not support the fact that the appellant was, in fact, involved in the crime. He submits that there is no direct evidence to establish that the complainant was, in fact, assaulted by the appellant or Krishan Lai, he was administered any intoxicating substance with intent/ intention to rob money. He submits that the evidence of the prosecution witnesses is full of inconsistencies to the extent that the factum of the involvement of any of the accused is not established on the record of the case. I cannot accept this submission that the evidence does not prove the guilt of the accused. The statement of the complainant has remained unrebutted. I do not find anything on the record to establish that the complainant was not accompanied by the appellant and Krishan Lai. He has given a vivid description of the entire episode till the time he became unconscious and thereafter he regained consciousness. The fact that a sum of Rs. 27,000/ - was withdrawn on 27th August, 2000 stands established and proved from the bank account of the complainant. Thereafter, the route taken by the accused has been corroborated by the entries in the barrier at Tunuhatti police barrier and excise barrier during the night of 22.8.2000.

PW15 Devinder Singh proved on record receipt (Ext. PW14/A) issued at the Excise & Taxation Barrier, Tunuhatti for a sum of Rs. 100/ - by this witness on 22.8.2000 for vehicle No. JK.-02-M-4392. The name of Krishan Lai has been entered as owner of the vehicle, who paid the tax. The fact that they (accused) travelled together to Dalhausie and stayed there in Kumar Hotel is established by PW11 Naveen Kumar, who is categoric in his statement that both the accused stayed in room No 218 which entry was recorded at serial No. 351 in the register. There is no effective cross-examination of this witness. Further from the fact that the money has been recovered from the accused, there is no doubt in mind that the appellant is guilty for the offences as charged. I cannot accept this submission that the evidence of the witnesses does not prove the guilt of the accused. There is thus no merit in this appeal which is accordingly dismissed. I have given careful consideration to the submission made by the learned Counsel appearing for the appellant, who submits that the appellant is a lady and looking after her three minor sons out of them two are mentally unsound and in these circumstances, the Court should take a lenient view. This fact was also urged before the learned trial Court which has taken a lenient view of the case. What I find further is that the appellant has also absconded during the trial and cannot be considered to be such an innocent person. However, on the conspectus of the material on record, it would be in the fitness of things in case the sentence of imprisonment under each head is set aside and instead a fine of Rs. 30,000/- is imposed upon the appellant with a direction that the amount be deposited in the Court of learned Sessions Judge, Chamba, Division Chamba within a period of six months from today failing which the sentence of imprisonment shall revive. On deposit of such fine, it shall be paid to the complainant. A direction is issued to the learned Sessions Judge, Chamba to comply with this judgment.