IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 485 of 2000. Date of Decision : December 14, 2010 State of Himachal Pradesh Appellant Versus Surinder Singh Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant/State. For the respondent : Mr. Jagdish Vats, Advocate, for the respondent/accused. R. B. Misra, J. (Oral) The present Criminal Appeal has come up for consideration after leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to impugned judgment dated 12.1.2000 passed by the learned Addl. Sessions Judge, Shimla, Circuit Court at Rohru, in Sessions Trial No. 22-S/7 of 1997 acquitting the accused/respondent for the offences under Sections 326 and 307 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that on 31.8.1995, at about 4:30 AM, Davinder Singh, victim/injured had gone to see the Banar festival at village Mandhole, along with Rameshwar (PW-10) and Pardhan Singh (PW-3). Because of raining on that day, there was mud in the ground where fair was being celebrated and mud spread on the clothes, on this, accused started abusing Davinder Singh on the pretext that he had thrown the mud and accused had also used filthy language and threatened him to do away with his life. At about 3:30 AM, after about one hour, accused again came and three-four persons assaulted Davinder Singh with a knife blow on the left side of the chest. Davinder Singh had fallen on the ground, who however, was taken by Rameshwar and Pardhan Singh to Civil Hospital, Rohru and victim/injured remained there for 42 days and in view of this, statement of Davinder Singh Ex.PW2/A, was recorded and FIR Ex.PW2/B was registered and Davinder Singh was thereafter brought to IGMC Hospital Shimla, for further treatment and he remained there for 15 days and thereafter taken to PGI Chandigarh, and remained there for 15 days as Outdoor Patient and 15 days as Indoor Patient. After investigation, accused was charged for the aforesaid offences. 3 3. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, through his statement under Section 313, Cr. P.C respondent/accused denied the charges and prosecution case. However, two witnesses DW 1 and DW 2 were examined in defence. 4. Dr. P.C. Gupta (PW-1), examined the victim/injured Davinder Singh on 31.8.1995, at about 4:20 PM and noticed found sharp edged wound on left infraaxillary region, 8 c.m. x 3 c.m size, skin deep, bandage and Baniyan was seaked in blood. In cross examination, PW 1 has stated that victim did not disclose the name of assailants and remained admitted in the hospital from 31.8.1995 to 11.10.1995 and thereafter he was referred to IGMC, Shimla and on 11.10.1995 he was suffering from Pneumothrex i.e. air in the left lung. There are multiple causes of pneumothrex which could be external or internal. External causes include fracture rib, spontaneous rupture of disease Bulla. Spontaneous rupture of Lung Bulla is due to some lung disease like tuberculosis. In view of the testimony of PW-1, made in cross examination, he described the injuries inflicted on the chest of Davinder Singh as grievous due to duration of his long stay in hospital as well as 4 dangerous to life due to sharp edged nature of injury. PW-1 has further stated in cross examination that there can be simple as well as grievous injury by a sharp edged weapon. The nature of injury was not grievous in nature. It was only the stay in the hospital on the basis of which PW 1 opined that injury was grievous and size of the tip of weapon could be 1 to 3 cms as the injury was skin deep, so other dimensions of the weapon could not be ascertained. In view of the testimony of PW 1 it was correct to suggest that if with a sharp edged weapon the blow is given with considerable force, the same could have caused deep injury including fracture of the rib as well as injury to the internal organs, whereas, it was not so in the present case. 5. Davinder Singh (PW-2), the victim-injured in support of the prosecution case, stated in cross examination that accused Surinder Singh was known to him prior to the incident, and Mela ground was spread in the area 16 x 15 yards. As per the testimony of PW-2, (Davinder Singh), so many people were present in the Mela ground. Initially, accused hurled only filthy abuses and threatened to kill him. The place where (PW-2) was assaulted, it was muddy and slippery and in 5 view of the testimony of PW-2 he did not know that he was taken to the hospital by lifting him. Again, he did not know even that he had gone to Dispensary at Mandal and told there to Dr. Dinesh Dutt and Karam Chand that he has received injury due to fall on an iron sheet. As per the testimony of PW-2 in cross examination, he reached to the hospital at Rohru. PW-2 has however, saw knife Ex.P-2 which was taken into possession by the police and that knife was sent to him in the Police Station after 15-20 days. PW-2, however, did not know as to by what mode he was taken to the hospital and when regained he consciousness, he found himself in a Van and reached at Rohru hospital at about 4:00 AM. 6. Pardhan Singh (PW-3), in support of the prosecution case has stated that victim was injured by the accused by knife and due to the injuries he had fallen on the ground and blood started oozing out from the injuries and Davinder Singh was lifted while PW-3 and PW-10 were brought to Civil Hospital, Rohru. In cross examination, PW-3 has stated that on the question as to how they went to Dr. Dinesh Sharma, Civil Dispensary at Mandal and on the question of Davindeer Singh (PW-1) as to how Davinder Singh sustained 6 injuries. The PW-2 could not respond, as, he was not conscious PW-3 has also did not disclose the Doctor, as how the injury was inflicted to PW-2. Rameshwar also did not tell the Doctor, as to how Davinder received the injury, however, Davinder Singh was provided first aid to the injured PW-3 also stated that Van was arranged around 8-9:00 AM on 31.8.1995 by which PW-2 was to Rohru by covering a distance of 15 KMs. 7. Beli Ram (PW-4), has stated that when police called accused Surinder Singh, he produced knife Ex.P-2 which was sealed by the police in a parcel in his presence vide memo Ex.PW4/A. 8. Sub Inspector Parkash Chand (PW-5) has stated that knife Ex.P-2 produced by the accused was taken into possession vide memo Ex.PW4/A. 9. HC Dharam Dass (PW-6), ASI Abdul Rasid (PW-7), HC Hira Singh (PW-8) and Dr. R.S. Dhaliwal (PW-9) are official witnesses whose testimonies are formal in nature. Dr. R.S.Dhaliwal (PW-9) has stated that Davinder Singh remained under treatment from 15.11.1995 to 29.11.1995. 10. Rameshwer (PW-10) in support of the prosecution case has stated that in Mela-ground at about 4:00 PM, the accused came and all of sudden assaulted Davinder Singh with the dagger below 7 this chest as a result of which he became unconscious, he was removed to Civil Dispensasry at Mandal where first aid was provided to him thereafter, he was removed to the hospital at Secura. 11. Testimonies of HC Jagdish Chand (PW-11) and ASI Laik Ram (PW-12) are formal, however, (PW-11) recorded the statement under Section 154, Cr. P.C Ex.PW2/A in Civil Hospital, Rohru and got the complainant examined at Rohru. PW 12 (Laik Ram) prepared the spot map Ex.PW12/A and conducted further investigation. On examination of the prosecution witnesses and materials on record, we notice that (PW-1) Dr. P.C. Gupta has found one injury on the chest which was stated to be serious in nature, however, it was suggested that such injury could be caused by tip of weapon, could be 1 to 3 c.m. of size and also indicated that such injury was not inflicted by force. The injury said to be grievous in nature. In view of the testimony of PW-2 (Davinder Singh) he had fallen on the ground and he became unconscious, however he was not aware whether he was taken to Civil Dispensary, Mandal and he again described about the assailant and sustained injury to Dr. Dinesh Dutt Sharma whereas, in view of the testimony of 8 (PW-3) Pardhan Singh and (PW-10) Rameshwer undisputedly accompanying (PW-2) Davinder Singh- injured he was taken to Civil Dispensary, Mandal, or not whereas, in view of the testimony of (PW-3) Pardhan Singh and (PW-10) Rameshwar accompanying (PW-2) Davinder Singh, he was taken to Civil Dispensary, Mandal, where he was given first aid. 12. (DW-1) Dr. Dinesh Dutt Sharma, stated that he was posted in Civil Dispensary at Mandal, since 1991 to 1996 and on 31.8.1995, a boy around came there around 6-7:00 AM, and told that other boy had fallen and has received injuries need a first aid. The injured boy was on the road about half kilometer away of the residence. PW-1 went to the place and examined the injured person and asked the history of injury from the injured boy. According to him, (PW-2),has suffered the injuries by way of fall as he disclosed his name as Davinder Singh and on that very night. DW-1, asked the Peon of the Dispensary to bring the spirit, dressing ante-septic articles, so that the dressing can be done there only and accordingly Karam Chand did. The injured person was taken to the hospital at Rohru. The testimony of (DW-1) Dr. Dinesh Dutt Sharma is supported by (DW-2) 9 Karam Chand, a Compounder in the said Dispensary who was accompanying at the relevant time to Dr. Dinesh Dutt Sharma (DW-1). DW-2 had recorded in OPD register at Sr. No.889, the name of Davinder Singh where it was mentioned as per the testimony of (PW-2) Davinder Singh, that the injury has been caused due to fall and strike with a tin sheet near Mandal Panchayat. Dressing articles were brought by DW-2, for giving first aid to Davinder Singh-injured. Undisputedly, first aid was given to Davinder Singh (PW-2) in Civil Dispensary, Mandal, where he stated that injury was caused by way of fall. The prosecution has not been able to prove that the knife was of same injured person (PW-2). Pardhan Singh (PW-3) and Rameshwer(PW-10), who took initially Davinder Singh/injured to Civil Dispensary, Mandal have not described correctly the cause of injury on (PW-2), whereas, DW-1 and DW-2 described that PW-2 that he had sustained injury by way of fall. So much so, the occurrence had taken place on 30.8.1995 at about 4:30 PM, whereas, FIR Ex.PW2/B was registered on 1.9.1995. As such, we are also find that there is a delay in lodging the FIR. Davinder Singh-injured at the first instance had divulged to (DW-2) Karam Chand that cause of injury is by way of fall. Again, as 10 per the testimony of PW-1 and PW-2 being an independent witnesses are disbelieved. They are not related to Davinder Singh (PW-2) or to the assailant accused-respondent and corroboration of the testimony of PW-3 and PW-10 so far as by taking the injured-Davinder Singh to Civil Dispensary, Mandal is undisputed. 14. In view of the facts and circumstances, the prosecution has failed to prove its case that the testimony of Pardhan Singh (PW-3) and Rameshwer (PW-10) are not inspiring confidence and testimony of Davinder Singh-injured (PW-2) is also doubtful, so far as the causing of injury. Learned Sessions Court has rightly arrived at the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has failed to bring home the guilt of the accused/respondent. Appeal is dismissed. Bail bonds, furnished by the accused/respondent, are hereby discharged. (R. B. Misra), Judge. (Sanjay Karol), Judge. December 14, 2010 CS 11