Kailash Chand Petitioner v. State Of H.P. & Others S

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25.10.2015 uptill 26.10.2015. Balbir Singh, the cousin of the petitioner was detected by respondents No. 4 to 6 to be in possession of a cell phone

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purportedly stolen from a shop owned by one Randeep Kumar located at Ghumarwin. Whe . n Pon 24.10.2015, both Balbir Singh and the petiti H oner were at Suni the former received a call on h f is mobile from Police Station, Ghumarwin, app o rising him of the factum of his holding po t ss essin of a mobile purportedly stolen fro u m t r he premises of RandeepKumar besides w o arranting hence his presence atPolice Statio C n, Ghumarwin for proceeding whereto arequest wa s made upon Balbir Singh. However, the petitio h ner also accompanied Balbir Singh to Police

i^Stg ation, Ghumarwin. Both reached Police Station, H

Ghumarwin ^on25.10.2015 ^ataround 9/10 O'clock. The petitioner is alleged to be during his illegal confinement therein from the night of 25.10.2015 uptill 26.10.2015 mercilessly beaten by respondents

No.4 to 6. The petitioner on 26.10.2015 as divulged

by prescription slip comprised in Annexure P-1 was

advised intake of medicines recited therein for

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treatment of sprain. Under Annexure P-2, the petitioner made a complaint to the Director General of Police, Himachal Pradesh ventilating therein his

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grievance of his when he stood illegally detained . fr P omthe night of 25.10.2015 to 26.10.2015 in Police Station, Ghumarwin his therein standing b H elabouredby respondents No.4 to 6. Under f Annexure-D, appended to the reply furnished b o y respondents No.1

to 3, the Director Genera t l of Police, Himachal

Pradesh, Shimla on his rec r eiving the complaint of the

petitioner compris o ed in u Annexure P-2 forwarded it torespondent C No.3 for appropriate action. Thepetitioner was medically examined at Civil Hopsital, Ghum h arwin and as portrayed/unraveled by Annexure

i^-Eg^,appended to the reply furnished by respondents H

No.1 to 3, the petitioner stood opined therein to not have suffered any fracture or dislocation. However, the petitioner on visiting IGMC, Shimla on 31.10.2014 whereupon he stood examined by the doctor

concerned was opined to have suffered a fracture of

leg. On the doctor at IGMC, Shimla, who attended

upon the petitioner on his visiting it on 31.10.2015

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having opined under annexure P-3, of his having suffered fracture of leg led him to obtain treatment thereat inclusive of application of plaster on broken

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bone.

2. On the aforesaid factual matrix, . Pthe petitioner attributes to respondents No.4 H to 6 the tortious act of theirs mercilessly be f lab ouring him during his illegal detention fr o om the night of25.10.2015 to 26.10.20 r 15 t at Police Station,Ghumarwin sequeling u fracture of bone of leg hencehe claims compen o sation from them. However, thereis a disclosure in Annexures-B, C and D appended to the reply f ur C nished by respondents No.1 to 3 to the

writ p h etition, especially in the statement of Balbir

i^Sig^nghalleged ^{to be}holding possession ^{of a}H

purportedly stolen cell phone from the premises ^of Randeep Kumar and who stood accompanied by the petitioner to Police Station, Ghumarwin of no beatings standing delivered on the person of the

petitioner besides it unfolds the factum of his not

standing illegally confined from the night 25.10.2015

till 26.10.2015 at Police Station, Ghumarwin.

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Moreover, when Annexure-E comprising the MLC prepared on 28.10.2015 by the Medical Officer of Civil Hospital, Ghumarwin records an opinion of the

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petitioner not suffering any fracture or dislocation does prima facie countervail the grievance of . Pthe petitioner of the fracture detected to be s H uffered by him by the doctor attending upon f him at IGMC, Shimla on 31.10.2015 bearing any o causal connection with the purported belabou r rin t gs perpetrated upon hisperson during his alleged illegal confinement from the night of 25. o 10.20 u 15 till 26.10.2015 at PoliceStation, Gh C umarwin. With the preparation orscribing of Annexure-E, being prior to the visit of the petitio h ner to IGMC, Shimla on 31.10.2015, the

i^omg ission ^{of a}revelation ⁱⁿAnnexure-E ^{of the}H

petitioner suffering ^anyfracture ^ordislocation also cannot when prepared in quick immediacy to his purported illegal confinement whereat he stood allegedly mercilessly beaten by respondents No.4 to

6, prima facie sequel any inference of the fracture or

dislocation of his bone as stood subsequently

detected at IGMC, Shimla on 31.10.2015 being

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relatable to any belabourings standing purportedly perpetrated upon his person by respondents No.4 to 6 during his illegal confinement w.e.f. 25.10.2015 to

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26.10.2015 at Police Station Ghumarwin.

3. On 18^thDecember, 2015 this Court . hPad directed the Medical Superintendent, De H en DayalUpadhyay Hospital, Shimla to examine f the petitioner afresh and to also conduct his x-r o ay for establishing

whether the petitioner has r s t uff ered any fracture ornot on 25.10.2015. In compliance thereto, the apposite opinion o has u been placed on record by theSenior Me C dical Superintendent, DDU (Zonal)Hospital, S himla, the relevant portion whereof stands reprod h uced hereinafter:-

ig

"The petitioner is old healed fracture of the headof^5thMetatarsal. Metatarsophalangeal Joint

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Appear Normal. ^Noabnormal collection noted. Rest of the bones are unremarkable." 4. The Senior Medical Superintendent, DDU (Zonal) Hospital, Shimla has not categorically

unraveled therein the factum of the fracture of the

head of 5^thMetatarsal as detected by him to stand

suffered by the petitioner being relatable to

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25.10.2015 or 26.10.2015, whereto it purportedly stood begotten by the petitioner during his alleged unlawful detention/confinement at Police Station,

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Ghumarwin in sequel to his purportedly standing belaboured thereat by respondents No.4 to 6. De . hPors the above when the espousal by the peti tio H ner of hisstanding detected on 31.10.2015 at IG f MC, Shimla to suffer fracture of leg stands frag o rantly contradicted

by the opinion of the Senior M t e dical Superintendent,

DDU (Zonal) Hospital, Shim r la inasmuch as the latter

on 18.12.2015 on o exa u mining the petitioner detectedhis suffering C an old healed fracture of the head of 5th Metatarsal necessarily ingrains it with a vice of falsity. h Moreover, this Court is faced with Annexure-E

i^ung folding ^thefactum ^{of the}petitioner ^onstanding H

examined ^{by the}Medical Officer ^atCivil Hospital, Ghumarwin on 28.10.2015 not thereat standing detected to suffer any fracture or dislocation vis-a-vis the report of the Senior Medical Superintendent,

DDU (Zonal) Hospital, Shimla though carrying a

reflection therein of the petitioner herein suffering

an old healed fracture yet it being reticent qua the

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time of its occurrence on the person of the petitioner precludes this Court to categorically determine with firmness qua its carrying any causal connection with

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the alleged tortious act of respondents No.4 . to 6belabouring the petitioner from the nightP of 25.10.2015 to 26.10.015 during hi s H unlawfulconfinement at Police Station, Ghumar f win. With the obstacle aforesaid besetting this C o ourt in relating the

fracture suffered by the p t et itioner detected on

31.10.2015 at IGMC, Shim r la by the doctor attending

upon him to his s o tand u ing belaboured by respondentsNo.4 to 6 du C ring his purported unlawful confinementfrom the n ight of 25.10.2015 to 26.10.2015 at Police Station h Ghumarwin rather with Annexure-E scribed in

i^qug^ickspontaneity ^tothe commission of the alleged H

tort of assault and battery upon him by respondents No.4 to 6 during his purported illegal confinement from 25.10.2015 to 26.10.2015 at Police Station, Ghumarwin subjugating any inference of any fracture

detected on 31.10.2015 at IGMC Shimla standing

suffered thereat by the petitioner does also vigorously

prima facie dispel the factum of its commission by

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respondents No.4 to 6. In aftermath with lack of connectivity or relatibility inter se the fracture of leg suffered by the petitioner and its standing detected

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on 31.10.2015 at IGMC, Shimla by the doctor attending upon him with the purported tort of as . saPult and battery purportedly committed up o H n him byrespondents No.4 to 6 during his illeg f al confinement from 25.10.2015 to 26.10.2015 o at Police Station,

Ghumarwin obviously also er t od es any espousal for

compensation by the petiti r oner for its commission on

his person by resp o onde u nts No.4 to 6. Moreover, withcontradiction C s to the extent referred to hereinaboveintra se the opinion of the Senior Medical Super h intendent, DDU (Zonal Hospital), Shimla vis-a-

i^vig^{s the}opinion ^{of the}doctor attending upon ^theH

petitioner ^on31.10.2015 ^atIGMC, Shimla prima facie benumbs the efficacy of the propagation by the petitioner of any fracture of his leg standing detected at IGMC, Shimla on 31.10.2015 besides prima facie

renders it to be bereft of any credence.

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5. The learned counsel appearing for the petitioner contends qua Annexure-E being concocted. He also contends qua the statements of Balbir Singh

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and Chuni Lal comprised in Annexure-B and Annexure-C supporting the stand canvassed by . tPhe respondents in their reply too being rid H den with falsity and of theirs being unamen f ab le for any reliance being placed thereupon. T o he contest qua the authenticity or otherwise of t An nexure-E or qua any falsity ingraining the u stat r ements of Chuni Lal andBalbir Singh wh o o therein support the stand asespoused by C the respondents in their reply cannotcome to be tested by this Court in this writ petition. The c h ontests espoused qua the aforesaid by the

i^leg arned counsels arouse complex disputed questions H ^offact warranting receipt ^ofconclusive evidence thereon. Adduction of firm and conclusive evidence thereon by the petitioner on his instituting a civil suit for damages or compensation arising from the

purported commission of tort of assault and battery

on his person by respondents No.4 to 6 during his

alleged illegal confinement from 25.10.2015 to

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26.10.2015 at Police Station, Ghumarwin, is a sine qua non for the petitioner succeeding in his claim for damages or compensation anvilled upon the alleged

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commission of tort of assault and battery upon his person by respondents No.4 to 6. In sequitur . , Pthe engendering of disputed questions of fact i H n this writ petition as stand germinated from f th e aforesaid complicated complex questions o of fact impinging upon the authenticity or r ot t he rwise of Annexure-Eand upon the statements of Chuni Lal and Balbir Singh respectivel o y c u omprised in Annexure-B andAnnexure-C, C wherein the role, if any, of respondentsNo.4 to 6 i n allegedly perpetrating belabourings upon the h petitioner during his purported illegal

i^cog nfinement from ^thenight ^of25.10.2015 till H

26.10.2015 ^atPolice Station, Ghumarwin, stands absolved, cannot in a short shrift manner merely on exchange of affidavits in support of the claim of the petitioner and in opposition thereto by the

respondents stand adjudicated upon by the Writ

Court as then it would tantamount to accepting the

version spelt out in the respective affidavits of the

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contestants before this Court even when neither the Medical Officer, who prepared Annexure-E nor Balbir Singh and Chuni Lal have withstood the rigor of

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cross-examination for eliciting in course thereof the truth of portrayals therein. For unearthing the . truPth or otherwise of the recitals in Annexure H -E and of portrayals in Annexures B and f C the cross- examination of their respective au o thors is imperative which however cannot be h r el t d i n proceedings beforea Writ Court rather when their respective examinations-in-ch o ief

u besides their cross-examinations C for testing the vigour and veracity ofportrayals in Annexures B to E, can obviously stand carried h out only during the course of the trial of an

i^apg posite suit instituted ^{by the}petitioner herein H

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record hence not dwell upon the authenticity or otherwise of their rival assertions or qua the authenticity or otherwise of Annexure-E or the

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statements of Chuni Lal and Balbir Singh comprised in Annexures B and C. Also this Court deems . itP fit and proper to not grant the reliefs to the pe H titioner as prayed for by him in the instant f w rit petition. Contrarily this Court deems it fi t o and appropriate toreserve a right in favour of r th t e petitioner to institutea suit for damages/comp u ensation before the Civil Court ofcompetent jurisdict o ion arising from the commission of tortof assault and battery upon his person by respondents No.4 to 6 d ur C ing his alleged illegal confinement at PoliceStation h , Ghumarwin, Bilaspur. Any observation madehe g rein-above shall not influence the Civil Court of i competent jurisdiction when seized of the apposite civil

H ^suitinstituted before ^{it by the}petitioner herein. Writ petition stand disposed ^{of, so}also, ^thependingapplications.

(Rajiv Sharma) Judge

(Sureshwar Thakur) 1^st January,2016 Judge.

(jai)