1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 709 of 1996 Decided on July 8, 2010 ___________________________________________________________ State of H.P. …Appellant. Versus Gurdial Singh and Others. …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. J.S. Rana, Assistant Advocate General. For the respondents: T.S. Chauhan, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 7.8.1996, passed by the Learned Sessions Judge, Una, District Una, H.P. in Sessions Trial No. 21 of 1995, under Sections 304, 201 read with Section 34 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. As per prosecution story, on 5.3.1994 accused persons and Harbans Lal participated in a marriage of Kishori Lal, uncle of PW.1 Ram Saroop. On the next day, i.e. 6.3.1994, PW.1 Ram Saroop along with Harbans Lal (deceased) were present in the marriage ceremony and at about 3.30 P.M., the marriage party was going to take lunch. 2 Bihari Lal PW.3 asked Santokh Singh, father of accused Ved Vyas, who was a Band Master to play a song of his choice, which was, however, declined by accused Santokh Singh. Bihari Lal asked Santokh Singh to stop playing band, as he was not agreeing the request of Bihari Lal PW.3. Hot exchange of words took place and they started quarreling. PW.1 Ram Saroop, Harbans Lal and one Mohinder Singh intervened. Thereafter, all the three accused including Ved Vyas son of Santokh Singh, who were standing nearby started quarrelling with PW.1 Ram Saroop and started beating PW.1 and Harbans Lal, while Gurdial Singh inflicted a knife blow in the stomach of Harbans Lal, which was witnessed by PW.8 Bishan Dass and PW.2 Kishan Chand, who were also present in the marriage party. 3. Harbans Lal was taken to hospital at Haroli, where first aid was given to Harbans Lal by PW.7 Dr. Mrs. Banyal. Thereafter, Harbans Lal was allowed to go to his village when his condition became serious, therefore, he was taken to District Hospital, Una. On the next day i.e. 7.3.1994, Harbans Lal was treated by PW.6 Dr. Jagdishwar Kanwar at District Hospital Una, who referred him to CMC Ludhiana, where Harbans Lal victim/deceased remained admitted, where he succumbed his injuries, on 13.3.1995. After his cremation, a report was lodged with the police by PW.1 Ram Saroop on 15.3.1994, at about 7.15 P.M.. The report Ex.PA, was registered by PW.23 S.I. Kashmir Singh. 4. The investigation was conducted by PW.19 S.I. Om Prakash, posted as Incharge Police Post, Haroli, investigated the 3 case and accused were charged under Sections 304 and 201 read with Section 34 of the Indian Penal Code. In order to prove its case, the prosecution has examined as many as 23 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. On analysis of the prosecution witnesses, we notice that PW.1 Ram Saroop is the real nephew of father of deceased, namely, Bishan Dass. It appears that initially the matter was reconciled amongst the interested persons with the co-operation of relatives, as the father of the deceased and father of the accused were treated as 'Dharam Bhai' (Godly Brothers), which is reflected from the testimony of PW.2 Kishan Chand and PW.8 Bishan Dass. In any case the injuries were inflicted on 6.3.1994 and true narration of the injuries were not given to the doctor PW.7 Dr. Mrs. S. Banyal and the FIR was lodged on 15.03.1994, i.e., after the death of deceased. There was delay in lodging the FIR, whereas, the dead body of the victim after his death was brought to the village on 13.3.1994 and was cremated. Proper explanation has not been given by the prosecution regarding delay in lodging the FIR. 6. In the marriage party right from 6.3.1994 to 15.3.1994 till the filing of FIR, no independent witness was either associated nor was examined by the prosecution. So much so, the postmortem was not conducted and PW.6 Dr. Jagdishwar Kanwar, who has examined Harbans Lal (the deceased), in an injured condition on 7.3.1994 at about 8.15 P.M. has mentioned in the 4 register that injured had sustained injuries by a fall on sharp object. Such entry was made in the register, on the basis of the fact mentioned in O.P.D. Slip and the certificate Ex. PD issued by PW-6 on an application dated 19.03.1994 of the police. PW-6 has also stated that the injured was brought accompanied by 5-6 persons who stated that the victim was injured by falling on the sharp iron rod fixed on a wood block. 7. The third Medical Officer PW.21 Dr. Sharad Ramdas from CMC Ludhiana, had also mentioned in regard to the history that the patient allegedly sustained injury by falling on a rod. It becomes evident that the injury and the manner the injuries were inflicted on the person of deceased or not, co-relative to the manner of injuries having been inflicted in view of the testimony of PW.1 Ram Saroop. Further, the eye witnesses examined by the prosecution, it is clear that several persons were present in the said marriage party, where the occurrence took place, but surprisingly no independent witness was examined by the prosecution to support its case and only interested witnesses, namely, Bishan Dass PW.8 father of the deceased, PW.9 Mohinder Singh and PW.1 Ram Saroop, cousin brother of deceased came forward, showing their endeavour to support the prosecution case. 8. On the question of inordinate delay in lodging the F.I.R., which makes the prosecution case fatal, Mr.J.S.Rana, learned Assistant Advocate General, has relied on the following judgments e.g., Rabindra Mahto & Another versus State of Jharkhand, (2006) SCC 432, Ravi Kumar versus State of Punjab, (2005) SCC 315, State 5 of H.P. versus Shree Kant Shekari, (2004) 8 SCC 153, Munshi Prasad & Others versus State of Bihar, (2002) SCC 351, Ravinder Kumar & Another versus State of Punjab, (2001) 7 SCC 690, Sheo Ram versus State of U.P., (1988) 1 SCC 149 and State of Karnataka versus Moin Patel, AIR 1996 SC 3041, where is has been held that if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging the FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by its reliable evidence. However, in the present case, delay on the part of the prosecution has not properly been explained as the incident took place on 6.3.1994 and then after delay of long nine days, the F.I.R. was lodged on 15.3.1994 at about 7.15 PM without any endeavour at all as to why inordinate delay was made in lodging the F.I.R., in the facts and circumstances, makes the prosecution case fatal. 9. In the present case, the post-mortem of Harbans Lal was not conducted which also makes the prosecution case fatal. On this aspect, the learned Assistant Advocate General has submitted that the conviction could be recorded on the reliable testimony of prosecution witnesses even in absence of post mortem, in view of the observations made by Supreme Court in Ram Gulam Chowdhary versus State of Bihar, 2001 (2) JIC 986 (SC) where it was observed that when the dead body was not 6 found but there was direct evidence of mother, sister and neighbourer of deceased that the accused persons entered into the house of the deceased, dragged him out, dealt with blows with various weapons and took away the body of the deceased and thereafter body could not be recovered and, therefore, post mortem could not be done, then it has been held by the Supreme Court that it was for the accused to explain what they did with the body after they took away. Conviction recorded by trial Court on the basis of direct evidence for the offences under Sections 302/149, 201 IPC in the absence of recovery dead body was upheld by the Supreme Court. 10. Deceased Harbans Lal was firstly examined by PW-7 Dr.(Mrs.) Banyal, who has not given the opinion that the injuries were sustained by knife. Second medical examination was done by PW-6 Dr.Jagdishwar Kanwar, who examined Harbans Lal (deceased / victim) in an injured condition on 7.3.1994 at about 8.15 PM and has mentioned in the Register that the injured had sustained injuries by a fall on sharp object. In third medical opinion of PW-21 Dr.Sharad Ramdas, the injuries were said to have been inflicted by falling on rod. As such, the opinion about the injuries sustained by the deceased is contradicted by the ocular evidence. Such contradictions make the prosecution case fatal. However, Mr.Rana, learned Assistant Advocate General, has relied upon the decision of Supreme Court in Mahmood versus State of U.P., AIR 2008 515, where it has been observed that if the direct testimony of eye witnesses is reliable, the same cannot be rejected 7 on hypothetical medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. If one doctor forms one opinion and another doctor forms a different opinion on the same fact, it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with the probability, the Court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. (Also see: Vishnu alias Undrya versus State of Maharashtra, (2006) 1 SCC 283, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Anwarul Haq versus State of U.P., (2005) 10 SCC 581, Anil Rai versus State of Bihar, (2001) 7 SCC 318, State of Haryana versus Bhagirath & Others, (1999) 5 SCC 96, Adya Singh versus State of Bihar, (1998) 6 SCC 439, State of U.P. versus Harban Sahai & Others, (1998) 6 SCC 50 and Madan Gopal Kakkad versus Naval Dubey & Another, (1992) 3 SCC 204. 11. According to learned Assistant Advocate General, Hon’ble Supreme Court in Thaman Kumar versus State of Union Territory of Chandigarh, (2003) 6 SCC 380, has prescribed the parameters of judging the reliability of ocular testimony by elaborating that the aspects of conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There 8 may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the types which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. 12. In the present case, the injury said to have been inflicted by Gurdial Singh with a knife was said to have been witnessed by PW-8, Bishan Dass and PW-2, Kishan Chand is contradicted by medical report of PW-6, PW-7 and PW-21. The medical reports and ocular evidence have not properly been explained, as such, the prosecution case cannot be said to be free 9 from doubts. 13. On the other hand, learned counsel for the accused / respondents has referred and relied upon the decision of Supreme Court in Niranjan Prasad & Others versus State of Madhya Pradesh, 1996 Cr.L.J.1987 (SC), where the Supreme Court in prevailing facts and circumstances has set aside the conviction of the accused persons taking into consideration the sharp contrast between the ocular testimony and medical evidence in light of the fact that in murder trial testimony of eye-witnesses was that the deceased and injured were assaulted with sharp cutting weapons but their testimony was not corroborated with medical evidence showing deceased having been injured by blunt object (weapon) only. Post mortem report showing that the deceased had no injury which could be caused by a sharp cutting weapon and, indeed, he had sustained only one injury which could be caused, according to the doctor by a blunt weapon only. 14. Learned Assistant Advocate General has referred and relied upon several decisions e.g., Dimple Gupta (Minor) versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh versus State of Punjab, AIR 2007 SC 2868, Kalegura Padma Rao & Another versus State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Others versus State of Bihar, (2002) 6 SCC 81, Leela Ram (Dead) through Duli Chand versus State of Haryana & Another, (1999) 9 SCC 525 and has submitted that since in the facts and circumstances, there is no material discrepancies or contradictions in the testimony of a 10 witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 15. We notice that the contradictions, inconsistencies and improbabilities, referred and mentioned above in the present case, go to the root of the case which make the case of the prosecution doubtful, as such, the verdict, referred and relied upon by the learned Assistant Advocate General, cannot be of much help to the prosecution. 16. After going through the prosecution witnesses and material on record as well as the impugned judgment, we find that prosecution has failed to prove its case and to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 17. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge July 8, 2010 (V.K. Sharma) (Purohit) Judge