HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. 179 of 1994 Reserved on: 11.7.2008 Decided on: 15.7.2008 State of Himachal Pradesh ………Appellant. Versus Neeraj Kapoor @ Neeraj Mahasha and others ……Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For respondent No.1: Mr. Hamender Chandel, Advocate. For respondent No.2: Ms.Madhu Sharma, Advocate. For respondent No.4: Mr.B.K. Malhotra, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. against the judgment of the court of learned Sessions Judge, Mandi, dated 25.9.1993, vide which the respondents were acquitted of the charge framed against them under Sections 307, 323 read with Section 34 IPC. Briefly stated the facts of the case are that on receipt of an information from the District Hospital, Mandi that some persons h ad suffered injuries, the _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Police Officer went to the Hospital and recorded the statement of Chander Mohan on 30.7.1991 at 6.30 p.m., which statement is Ext.PA. In this statement, the complainant had alleged that at about 5.15/5.30 p.m., he had gone on his scooter to Petrol Pump, Gandhi Chowk, for getting some petrol. He had gone at the counter to make payment for the petrol when four persons named by him came there and gave him blows with Non Choak and with legs and fists. His elder brother Dinesh Kumar came there, rescued him and those persons ran towards Suhara Muhalla. After some time, those persons again came back near Dilu Ram and Company and started quarelling with him and his brother Dinesh Kumar, his uncle Suresh Kumar and one Yogesh Kumar tried to rescue him. The respondents caught hold of his uncle and Neeraj Kapoor gave a blow with knife on the chest of his uncle. Those persons ran away from the spot and he got his uncle admitted in the Hospital. It was also alleged that the respondents were inimical with them since they had dispute with one Vivek Bhardwaj, a friend of the complainant. On the basis of this report, the FIR was registered. The investigation was conducted leading to the filing of the challan before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, Mandi, who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General were that the statement of the complainant had been duly corroborated by other witnesses and medical evidence, and since the learned trial Court had held the respondents to be not guilty on the basis of minor contradictions and infirmities - 3 - in the present case and as such these findings can be termed as perverse calling for an interference by this Court. Coming to the evidence, the first question to be considered in regard to the FIR, as has been discussed by the learned trial Court also, is as to when it was registered. According to the evidence led by the prosecution, the statement of Chander Mohan was recorded at 6.30 p.m. at District Hospital, Mandi, on the basis of which the FIR was recorded. The surprising part is that the FIR Ext.PW- 8/A proved in evidence does not show the time of registration of the occurrence. It only shows that the occurrence took place on 30.7.1991 at 5.15/5.30 p.m. It also makes a reference that the basis of the FIR is DD No.24, dated 30.7.1991, at 6.50 p.m. but the said DD never saw the light of the day and even if that was the basis, the time of recording of FIR should have been clearly mentioned in the FIR, which is not there. A perusal of Ext.PA, the statement made under Section 154 Cr.P.C. by Chander Mohan, shows that after it was recorded at 6.30 p.m., ASI Prem Chand sent the same to the Police Station and on the same day the FIR was registered. The said Prem Chand, who recorded this statement, has been examined as PW-8. He has also stated that he recorded this statement Ext.PA, which is in his hand and bears his signatures and he sent the same to the Police Station for recording of FIR. This clearly shows that the FIR must have been registered after some time at 6.30 p.m. or say in between 6.45 p.m. or 7.00 p.m. since the distance in between the place of occurrence and Police Station, as has been recorded in the FIR Ext.PW-8/A, is 1/2 km. The Investigating Officer is specific that he recorded the same at the District Hospital, Mandi, whereas the complainant Chander Mohan, whose statement Ext.PA was recorded by this Investigating Officer, has stated as PW-1 that his statement was - 4 - recorded at Police Station when he had gone there at 10.30 p.m. He is clear that this statement was recorded at 10.30 p.m. and not prior to that. Therefore, the mentioning of the time by the Investigating Officer as 6.30 p.m. at District Hospital, Mandi and non-mentioning of the time in the FIR makes the statement of the Investigating Officer doubtful. Moreover, the Investigating Officer as PW-8 had come up with another plea that firstly he tried to record the statement of Suresh Kumar, injured, and since he was under treatment and was not in a position to make the statement, therefore, he recorded the statement of Chander Mohan. However, once he had recorded the statement of Chander Mohan under Section 154 Cr.P.C., which had also been sent to the Police Station for registration of the FIR, there was no occasion for him to record the statement of Suresh Kumar Ext.PC as a statement under Section 154 Cr.P.C. Once the FIR has been registered on the basis of the statement Ext.PA made by Chander Mohan, the subsequent statement can only be recorded under Section 161 Cr.P.C. and not under Section 154 Cr.P.C. Moreover, this witness, who proved Ext.PC, the statement of Suresh Kumar on the same day, has neither mentioned the time nor he has proved that this statement was recorded by him prior to the statement of Chander Mohan. Ext.PC surprisingly does not show the time of recording this statement, which should have been mentioned by the Investigating Officer. Coming to the statement made by this witness PW-8 Prem Chand that he recorded the statement in brief since the medical advice given was that brief statement be recorded since he was not fit to make a detailed statement. However, the medical officer examined in this case, namely, PW-4 Dr.S.S. Guleria has clearly stated that he was asked his opinion vide Ext.PW-4/C and he - 5 - gave his opinion Ext.PW-4/D and had permitted the recording of the statement of the injured vide his endorsement at point ‘A’. He has nowhere stated that he had permitted the Investigating Officer to record a brief statement only since he was not fully fit. Thus, the statement of the Investigating Officer PW-8 does not inspire confidence that he investigated the case in a fair manner since he recorded two statements under Section 154 Cr.P.C., did not mention the time of recording of statement Ext.PC and has tried to give the time of recording the FIR as sometime after 6.30 p.m. though the complainant is specific that he went to the Police Station and his statement was recorded at 10.30 p.m. on the basis of which the FIR was registered. From the above discussion, it follows that attempt had been made by the Investigating Officer to mention the time of earlier period before recording the statement and the manner in which two statements were tried to be recorded has to be condemned. This clearly shows that efforts may have been made to help either of the parties and the investigation cannot be termed as fair in the case. Coming to the evidence, the learned trial Court had referred to the testimony of PW-2 Suresh Kumar, injured, who received the blow inflicted by Neeraj Kapoor, respondent, with a knife on his chest. It is in evidence of PW-1 Chander Mohan that the initial quarrel had taken place at the petrol pump where they were given blows with legs, fists etc. and the fatal blow for which one of the respondent has been charge sheeted under Section 307 IPC was given by respondent Neeraj Kapoor with a knife on the person of Suresh Kumar PW-2 near the shop of Dilu Ram and Company. It is in evidence that when this blow was given, apart from injured, Yogesh Kumar, Vivek Bhardwaj with whom the - 6 - respondents were allegedly inimical and one Dinesh Kumar were also there. The learned trial Court had rightly observed that according to the evidence, Vivek Bhardwaj, Dinesh Kumar and Yogesh Kumar were most material witnesses of the occurrence apart from other persons, who were present at the spot and can be termed as independent witnesses. However, none was examined from those independent witnesses. There was no dearth of them, which was held to be a circumstance to suspect the prosecution version. The learned trial Court also observed that the prosecution should have examined Vivek Bhardwaj, Dinesh Kumar and Yogesh Kumar who had seen the occurrence and had allegedly helped Chander Mohan and Suresh Kumar at the time of occurrence and they should have been examined to corroborate the version of Chander Mohan and Suresh Kumar, but they were not examined by the prosecution, to avoid the repetition, though they can be termed as material witnesses. Moreover, it is surprising that some of the accused have been charged under Section 323 IPC read with Section 34 IPC having given beatings to Yogesh Kumar and Dinesh Kumar apart from the beatings given to Chander Mohan and both the injured, namely, Yogesh Kumar and Dinesh Kumar were not considered as material witnesses by the prosecution to examine them, for the reasons best known to them. The non-examination of these persons, who had witnessed the occurrence, apart from other independent witnesses present at the spot, makes the prosecution story doubtful. The learned trial Court had also observed that the statement of Vivek Bhardwaj was necessary to be recorded since he had come with PW-1 Chander Mohan on the Scooter and had witnessed the first occurrence and had also - 7 - witnessed the occurrence near the shop of Dillu Ram and Company, but he was not examined by the prosecution for the reasons best known to them. There is also medical evidence, as discussed by the learned trial Court, which clearly shows that the Medical Officer PW-4 Dr.S.S. Guleria had not given any opinion on the injury in question on the person of Suresh Kumar, injured, that it was possible with a knife. The learned trial Court had observed that keeping in view the nature of the injury, it cannot be inflicted with a knife and in the absence of the opinion of the Medical Officer, it cannot be said that this injury was inflicted by a knife. The Medical Officer as PW-4 Dr. S.S.Guleria had admitted the suggestion that this injury can be caused by a fall on a sharp edged flat iron. The learned trial Court had also referred to the discrepancy in the prosecution case that the cut of the injury was there on the shirt Ext. P-1 but it was not there on “baniyan” Ext. P-2 and therefore, this makes the prosecution story doubtful that any injury was inflicted on the person of Suresh Kumar when he was wearing shirt Ext. P-1 and “baniyan” Ext. P-2. The statement of Vivek Bhardwaj was more material since it would have proved that there was any enmity with the respondents for which blows were inflicted on the complainant PW-1 Chander Mohan and other persons. A perusal of the statement of PW-1 Chander Mohan shows that he was confronted in regard to the improvements made as compared to Ext. PA, his statement recorded under Section 154 Cr.P.C., and these contradictions or improvements made are material once the witness had been given an opportunity to explain in regard to the facts alleged in his earlier statement Ext. P-A. The accused can take a benefit of these improvements only once the witness was confronted with his previous statement and in the present case, he has been confronted with the previous statement - 8 - and since he made major improvements from the version given by him earlier to the police, therefore, his statement cannot be taken without there being sufficient corroboration to his testimony by other material witnesses or independent witnesses who had not been examined by the prosecution. Therefore, the final findings recorded by the learned trial Court holding that the prosecution had failed to prove their case beyond a reasonable doubt cannot be said to be perverse calling for an interference by this Court. In view of above discussion, we hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. (V.K. Ahuja), July 15, 2008 Judge. (TILAK)