Criminal Appeal No. 528-DBA of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 528-DBA of 1999 Date of decision : 16.5.2008 State of Punjab .....Appellant Versus Gurmail Singh ...Respondent 2. Criminal Appeal No. 529-DBA of 1999 State of Punjab .....Appellant Versus Ruldu Singh ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab for the appellant. Mr. M.S. Uppal, Advocate Mr. J.S. Virk, Advocate S. D. ANAND, J. The prosecution presentation against the respondents/accused (in case FIR No. 85 dated 14.12.1990, under Sections 325, 326, 323, 34 IPC registered at Police Station, Bareta ), though upheld by the learned Trial Judge vide judgment dated 17/18.12.1997, was invalidated by the learned Additional Sessions judge, Mansa, on a finding that there was old enmity between the parties on account of pendency of civil litigation and, on that account, the possibility of false implication of the respondents- Criminal Appeal No. 528-DBA of 1999 -2- accused could not be ruled out. It was further found that the prosecution witnesses PW-2 Babu Singh and PW-3 Boota Singh, who are close relatives inter-se, had been changing their stance and it (change of stance) rendered their statements unreliable. In the context of relationship between the parties not being easy, the following observations were recorded by the learned Trial Judge :- “There is also old enmity in between the parties on account of civil litigation going on and as such, on account of enmity between the parties, their false implication cannot be ruled out.” For discarding the testimony of PW-2 Babu Singh and PW-3 Boota Singh, the learned Additional Sessions Judge, Mansa observed as under:- “The prosecution witnesses PW2 Babu Singh and PW3 Buta Singh who are close relatives with each other have also taken a changing stand with regard to their injuries. In Ex.PA the first information statement of Babu Singh, he has no where stated that injuries on his person were given by Harbans Singh and Gurmail Singh with a blunt weapon, but stated that the injuries were given to him with sharp edged weapon and they continued giving him more blows on his person. When he appeared as PW-2, he stated so many times with regard to so many injuries that they were given to him with Takua from its reverse side. It appears that he has improved his statement after seeing the MLR and that makes his statement as unreliable.” Criminal Appeal No. 528-DBA of 1999 -3- Apart there-from, it was noticed that the testimony of Investigating Officer could not be considered to be substantive in character inasmuch as his cross-examination came to be deferred on 26.7.1992 and he did not step in the witness box thereafter for completing it. It was also noticed that there was inordinate delay in lodging of the FIR. The impugned occurrence had taken place on 12.12.1990 at 1.00 P.M. but the medico legal examination of the injured was conducted on 13.12.1990 and the FIR was recorded on 14.12.1990. In that context, the following observations were recorded by the learned Addl. Sessions Judge, Mansa :- “Secondly, it has been noticed that the alleged occurrence took place on 12.12.1990 at 1.00 p.m. but the medical examination of the injured was conducted on 13.12.1990 and the FIR was lodged on 14.12.1990. There was an inordinate delay in lodging the FIR, which has not been explained by the prosecution satisfactorily. It would be evident that according to the complainant Babu Singh he was firstly taken to Civil Hospital, Bareta and he was given initial treatment there and then he was referred to Civil Hospital, Budhlada. It has been noticed that no entry in the hospital record was made by the medical officer in the registers regarding the treatment of Babu Singh. There is also no written document on the file from which it could be said that Babu Singh complainant was referred to Civil Hospital, Budhlada. The second injured person Buta Singh has not at all appeared before any Medical Criminal Appeal No. 528-DBA of 1999 -4- Officer on 12.12.1990, i.e. the date of alleged occurrence. Thus the prosecution has not explained the delay with cogent evidence of 12.12.1990. In the absence of hospital record on the file, it cannot be accepted that Babu Singh complainant went to Civil Hospital, Bareta for treatment and if he had gone there, what were the reasons that his MLR was not drawn by the Medical Officer and what were further reasons for referring him to Civil Hospital, Budhlada for further treatment. Similarly Buta Singh never appeared before the Medical Officer on 12.12.1990 and for the first time, he went to Civil Hospital, Budhlada for treatment on 13.12.19090. He has not explained the reasons for not getting the treatment immediately and what were the reasons for delaying the matter. Then further it would be noticed that the MLRs of the injured were drawn on 13.12.1990, but the police officer did not attend them on that date of record the FIR. It was stated by the prosecution witnesses that the injured were not in a fit condition to make statement, but his assection of the prosecution does not appear to be convincing for the reason that the injured were in a good condition on 12.12.1990 and they also remained in conscious mind till they were admitted in the hospital. They have stated that they went to the hospital of their own by arranging conveyance and in such a situation, it cannot be accepted that they become unfit to make the statement, when the police went to the hospital for recording the first Criminal Appeal No. 528-DBA of 1999 -5- information with regard to the incident. It appears that prosecution has not given genuine explanation in justifying the delay. The inordinate delay in registering the FIR is also fatal to the conviction of the accused persons. In this regard also reference is made to reported case cited as 1984 CC Cases 65 (P&H) Jawala Singh Vs. State of Punjab AIR 1971 (SC) 66 Khedu Mohatan versus State of Bihar and AIR 1973 SC Thulia Kali Vs. State of Tamil Nadu. According to the principle of law laid down in these authorities, the story of the prosecution is doubtful and its benefit is required to be given to the accused.” The reasons recorded by the learned Addl. Sessions Judge, Mansa for discarding the prosecution presentation are appropriate. The finding of exoneration is based upon proper appreciation of evidence. Infact, we find that the learned Addl. Sessions Judge analysed evidence thoroughly and had recorded a fair finding on the basis thereof that the prosecution presentation was not reliable. In the light fore-going discussion, both the appeals Criminal Appeal No. 528-DBA of 1999 and Criminal Appeal No. 529- DBA of 1999 filed by the State shall stand dismissed. ( S. D. ANAND ) JUDGE May 16, 2008 (ADARSH KUMAR GOEL) Pka JUDGE