Criminal Appeal No.80-DBA-2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.80-DBA of 2006 Date of decision: February 28 ,2008 State of Punjab ......................................appellant Versus 1.Harinder Singh @ Raju, aged 24 years son of Ram Singh son of Mussha Singh,Student, resident of 138, Kamla Nehru Colony, Bathinda. 2. Rajinder Singh, son of Ujagar Singh, aged 23 years,Student, resident of House No. 145, Kamla Nehru Colony, Bathinda. .....................................respondents. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr.S,S,Bhinder, Additional Advocate General,Punjab for the appellant. Ms. Baljeet Maan, Advocate and Mr.Parminder Singh, Advocate, for the respondents. Sham Sunder,J. This appeal is directed against the judgment dated 20.1.2005, rendered by the Additional Sessions Judge-cum- Fast Track Court, Bathinda, vide which, it set aside the judgment dated 21.5.2002, rendered by the Court of Judicial Magistrate I Class, Bathinda and acquitted accused Harinder Singh @ Raju, for the offence punishable under Section 326 of the Indian Penal Code, and accused Rajinder Singh, for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. Criminal Appeal No.80-DBA-2006 2 2. The law was set into motion, by Jagdip Singh, injured, by making a statement before ASI Lal Singh, on 21.3.2000, to the effect that on 20.3.2000 he ( Jagdip Singh) attended the marriage party of his friend, Ashok Kumar, in Dhillon Marriage Palace, Bathinda. People were having drinks and dancing, in the marriage party. Jagdip Singh,however, did not take liquor. Accused Harinder Singh @ Raju and Rajinder Singh asked Jagdip Singh, to arrange pegs of liquor, for them, but he refused to do so. Thereafter, both the accused asked Jagdip Singh, to come out side, the marriage palace. As soon as, he came outside the marriage palace, Rajinder Singh, accused, raised an exhortation that Jagdip Singh be taught a lesson, for not bringing pegs of liquor, for them. He caught hold Jagdip Singh of his arms, and Harinder Singh alias Raju,accused, took out a knife, from the pocket of his pant, and thrust the same in his abdomen. At that time, Bhola Singh, father of Jagdip Singh, was standing there, waiting for him ( Jagdip Singh ).He witnessed the occurrence.Bhola Singh, father of Jagdip Singh raised alarm, that his son be not caused injuries, whereupon, both the accused ran away, from the spot, with knife.The occurrence took place at about 12.30 am (night),on 21.3.2000 when the lights were on. Bhola Singh, father of Jagdip Singh got him admitted, in a private hospital, for treatment. After recording the statement of Jagdip Singh, a ruqa was sent to the Police Station, on the basis whereof, FIR under Sections 323 and 324 read with Section 34 of the Indian Penal Code, was registered. The accused were arrested. Later on, offence punishable under Section 326 IPC was added. After the completion of investigation, the challan was presented. 3. On their appearance, in the trial Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 326 IPC,against Harinder Singh @ Raju accused and under Section 326 read with Section 34 of the Indian Penal Code, against Criminal Appeal No.80-DBA-2006 3 Rajinder Singh, accused, was framed, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. Satpal Garg PW1, Dr.Sanjay Garg PW2, Jagdip Singh, injured PW3, Bhola Singh, an eye-witness, PW4, SI Lal Singh,PW5, and Harcharan Singh ASI, PW6. Thereafter, the prosecution closed its evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them,in the prosecution evidence They pleaded false implication. It was asserted by them, in their statements under Section 313 Cr.P.C.,that they did not cause any injury, to the complainant. It was further stated by them that the complainant quarrelled with some unknown persons, who caused simple injuries, on his person, and they ( accused ) were involved, in this case, on suspicion. 6. In defence, the accused examined Rajinder Kumar,DW1, and closed their defence evidence. 7. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused and, on going through the evidence , on record, the trial Court, convicted accused Harinder Singh @ Raju and sentenced him to undergo RI for a period of two years and to pay a fine of Rs.3000/- and in default of payment thereof, to further undergo RI for six months, for the offence punishable under Section 326 of the Indian Penal Code, whereas, Rajinder Singh,accused, was convicted and sentenced to undergo RI for a period of one year for the offence punishable under Section 326 read with section 34 of the Indian Penal Code.It was further stated that the fine,if realised, shall be paid to the injured as compensation. Criminal Appeal No.80-DBA-2006 4 8. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, on 21.5.2002, an appeal was filed, which was accepted vide judgment dated 20.1.2005 by the Additional Sessions Judge-cum-Fast Track Court, Bathinda. 9. Feeling aggrieved, against the judgment dated 20.1.2005, rendered by the Additional Sessions Judge,-cum-Fast Track Court, Bhatinda, the instant appeal was filed, by the State of Punjab. 10. We have heard learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant contended that the first Appellate Court, was completely wrong, in reversing the judgment of conviction, and the order of sentence, rendered by the trial Court. It was further contended that the first Appellate Court, based its conclusion,just on surmises and conjectures. It was further contended that there was no delay, whatsoever, in lodging the First Information Report, and , if any, such delay occurred, the same stood explained, as the first concern of the kith and kin of the injured, was to provide him the best medical aid, but the first Appellate Court ignored this aspect of the matter. It was further contended that the first Appellate Court was also wrong, in coming to the conclusion that, though the occurrence had taken place, out-side the marriage palace,no independent witness, was examined, and, as such, the case of the prosecution became doubtful. It was further contended that, at that odd hour of the night, no independent witness was available, and the occurrence was witnessed by Bhola Singh, father of the injured, who was examined. It was further contended that the evidence of Jagdip Singh and Bhola Singh was sufficient to bring home the guilt to the accused. It was further contended that the first Appellate Court was wrong, in coming to the conclusion that no offence under Section 326 IPC was made out. It was further contended that the medical evidence clearly indicated that the injury Criminal Appeal No.80-DBA-2006 5 with knife caused in the abdomen of the injured, was grievous, in nature and,as such, the offence punishable under Section 326 IPC was constituted. It was further contended that the judgment of the first Appellate Court being perverse and illegal was liable to be set aside. 12. On the contrary, the Counsel for the respondents supported the judgment of the first Appellate Court. In the alternative, it was contended that if this Court comes to the conclusion that the judgment of the first Appellate Court, was liable to be set aside, then only the offence punishable under Section 324 IPC, was made out, and Harinder Singh @ Raju in the event of reversal of the judgment of the first Appellate Court, be granted the benefit of the provisions of Probation of Offenders Act,1958. It was further contended that there was no common intention between the accused and the question of acting in furtherance thereof did not at all arise. It was further contended that Rajinder Singh, accused, could not be convicted with the aid of Section 34 of the Indian Penal code. 13. The first ground, which weighed with the first Appellate Court, to come to the conclusion, that the case of the prosecution was doubtful, was that considerable delay in lodging the First Information Report, was not explained. The first Appellate Court, in our opinion,was wrong, in coming to the conclusion that delay in lodging the First Information Report, was not explained by the prosecution witnesses, for the reasons to be recorded hereinafter. The occurrence took place on 21.3.2000, outside Dhillon Marriage Palace, Bathinda at about 12.30 am (night). The FIR was registered on 21.3.2000, at about 8.05 pm. No doubt, there was delay of 19 hours, in lodging the FIR. At that odd hour of the night, the shops in the Bazar were closed, and it was not possible to find out a vehicle easily. The first concern of the father of the injured , who witnessed the occurrence , was to provide him the best medical aid so as to save his life. In these circumstances, the father of the injured, in the first instance, searched a Criminal Appeal No.80-DBA-2006 6 rickshaw, which took some time.After arranging the rickshaw, he took his son to Delhi Nursing Home, at a distance of 2/2-1/2 kms, from the place of occurrence. As the road was in bad shape, the rickshaw puller was also to take care, that, on account of pulling of the rickshaw,no discomfort was caused to the injured, sitting therein. As soon as the injured was taken to Delhi Nursing Home, the Doctor admitted him and started his treatment. The Doctor then sent intimation to the police i.e. Civil Lines Police Post, Bathinda at 2.30 a.m. on 21.3.2000. On receipt of information, ASI Lal Singh of Police Post Civil Lines,Bathinda, was deputed for recording the statement of the injured, in Delhi Nursing Home. Since the condition of the injured was precarious, the Doctor after giving him first aid, took him to the operation theatre, at about 3 am, on 21.3.2000, when in the meantime at about 3.30 a.m, ASI Lal Singh reached the said Nursing Home. He moved an application Ex.PE, seeking the opinion of the Doctor, as to whether, Jagdip Singh,injured, was fit to make statement or not.Endorsement Ex.PE/1 on the application Ex.PE, was made by Shivji Ram,pharmacist, that the injured had been taken to the Operation Theatre, and was not available, to make his statement. On account of this reason, the statement of the injured could not be recorded at that time. Thereafter the police officials again visited Delhi Nursing Home at about 8.30 am, on 21.3.2000, and moved an application Ex.PD, seeking the opinion of the Doctor whether Jagdip Singh, injured, was fit to make statement or not. The doctor made endorsement Ex.PD/1 declaring the injured unfit to make statement. It was thereafter that the police visited again at 6 p.m. and sought the opinion of the doctor, vide application Ex.PF whether the injured was fit to make statement or not and the doctor opined vide Ex.PF/1, that the injured was fit to make statement and recording of his statement commenced, which was completed at about 7.15 pm, on the basis whereof, FIR Ex.PW6/B was recorded. Since the injured was immediately taken to Criminal Appeal No.80-DBA-2006 7 Delhi Nursing Home and even at 2.30 a.m. on 21.3.2000 the police was informed by the doctor of the said Nursing Home of his admission, the question of concoction of story, false implication of the accused or introduction of false witnesses did not at all arise, in as much as, there was no time, with the father of the injured, to fabricate the story. Whatever delay occurred, in lodging FIR, thus, stood duly explained, from the facts and circumstances discussed above. The first Appellate Court was, thus, completely wrong in holding that the delay in lodging the FIR did not stand explained and, as such, the case of the prosecution became doubtful. 14. No doubt, the father of the injured was having a motor cycle with him at the relevant time. He could not take the injured on the motor cycle to the Nursing Home, as his condition was very precarious because of having sustained injury, in his stomach with knife. The injured might not be able to sit on the pillion of the motor cycle, at that time. It was, under these circumstances, that the father of the injured thought it proper, to fetch a rickshaw, as no other four wheeler was available, at that hour of the night to take the injured to the Hospital. In the rickshaw, the injured could certainly sit comfortably by keeping his head, in the lap of his father, who also accompanied him, to the Nursing Home, in the said rickshaw. Had the condition of the injured been not precarious, it would have been said that the injured could certainly be taken to the Nursing Home, on the motor cycle. In this view of the matter, the submission of the Counsel for the respondent , being devoid of merit, must fail, and the same stand rejected. 15. The statement of Bhola Singh, father of the injured, was not immediately recorded by the Police. There is nothing,on record, that he refused to make a statement. If the Investigating Officer, was remiss in recording his statement, in the hospital,when the injured was unfit to make a statement, the complainant cannot be made to suffer for that, as the investigation was not under his control. Criminal Appeal No.80-DBA-2006 8 16. The first Appellate Court also disbelieved the case of the prosecution, on the ground, that no independent witness was joined,although a number of person could be said to be present in the marriage function. The finding of the first Appellate Court in this regard, does not appear to be in consonance of the facts, circumstances and evidence on record. Bhola Singh PW stated that at the time of occurrence the marriage function was already over. The statement of the injured was duly corroborated by his father, who was an eye-witness to the occurrence. The occurrence took place, at the dead of night, outside the marriage palace and not inside the same. There is no evidence on the record that any other independent witness, witnessed the occurrence. Independent witnesses could not be possibly available outside the marriage palace. Even if it is assumed for the sake of arguments that some officials of the marriage palace were present inside the same, after the function was over, they did not see the occurrence, and therefore, even if they had been joined, their evidence would not have been of any avail. Even otherwise, it is a matter of common experience, that independent witnesses, hardly come forward, to depose, even if they have witnessed the occurrence, with a view to avoid incurring the wrath of the accused, and harassment which they may have to face, by appearing in the Court, again and again, for their evidence. Since the case of the prosecution was proved through the cogent and convincing evidence of Jagdip Singh, injured, duly corroborated through the evidence of Bhola Singh, an eye-witness, medical evidence, and the evidence of recovery of knife, mere non-joining of an independent witness did not, at all, cast any doubt, on the case of the prosecution. In Appa Bai and anothr V.State of Gujarat 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by it. It was further held that civilized people,are generally insensitive, when a crime is committed, even in their Criminal Appeal No.80-DBA-2006 9 presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between the two individuals, and do not involve themselves in it. The principle of law, laid down, in this authority, is fully applicable to the facts of the present case. Had the first Appellate Court, taken into consideration, the facts, circumstances, and the evidence of record, in its entirety, it would have certainly come to the conclusion, that, even in the absence of joining of an independent witness, the case of the prosecution did not become doubtful. The finding of the first Appellate Court, to the effect that the case of the prosecution,became doubtful, on account of non-joining of an independent witness is perverse and illegal and liable to be set aside. 17. The next ground which weighed with the first Appellate Court, for acquitting the appellants, was that the story of the prosecution was improbable. The first Appellate Court, in para 14 of its judgment, observed that when the drinks were being regularly served, in the marriage party, the question of asking the injured, to bring pegs of liquor, by the accused did not at all arise. It was further observed, by the first Appellate Court, that, in these circumstances, the question of the appellants/accused asking the injured to come outside the marriage palace, when he allegedly refused to bring pegs of liquor, for them, did not at all arise. No doubt, it has come on record that liquor was being served in the marriage party. The injured was known to the accused, earlier to the occurrence. The mere fact that the liquor was being served, in the party, did not mean that the accused could not ask the injured to bring pegs of whisky for them. The accused might be sitting at some distance comfortably and, on finding the injured, near them, and with a view to satisfy their ego, they asked him to bring pegs of whisky. There is evidence of the injured, in this regard. There was no reason, on the part of the injured, to tell lies, on this aspect of the Criminal Appeal No.80-DBA-2006 10 matter. The evidence of the injured, in this regard, is reliable. Once the statement of the injured, in this regard, is believed, then only one and one conclusion, that could be arrived at ,was that he was asked by the accused to bring pegs of whisky, but when he refused to do so, they got annoyed and called him outside the marriage palace. When the injured and accused reached out side the marriage palace, the occurrence took place. The story of the prosecution, as observed, by the first Appellate Court, was not at all, improbable or unnatural. When the injured came outside the marriage palace, on the asking of the accused, and the latter also reached there, they with a view to take revenge of their insult, at the hands of the injured, as he had refused to oblige them by bringing pegs of whisky for them, caused injuries on his person. As stated above, the occurrence was witnessed by the father of the injured, who had come to take him back, and was waiting for him, outside the Dhillon Marriage Palace. There was no enmity of the injured and his father with the accused, to falsely implicate them, in the present case. Had the injuries been not caused, on the person of the injured, by the accused, he (injured) and his father would have been the last persons, to depose against them. The Court was required to act, on the basis of the evidence produced and not on mere surmises and conjectures. The story of the prosecution, was neither improbable, nor unnatural, on the aforesaid aspect of the matter. The finding of the first Appellate Court, that the story of the prosecution was improbable and unnatural,appears to be perverse and liable to be set aside. 18. The first appellate Court also came to the conclusion, that no offence punishable under Section 326 IPC, was made out, as the injury on the person of the injured was not declared grievous, nor there was cut of bone. Dr. Sanjay Garg, of Delhi Nursing Home,Bathinda, when appeared as, PW2, deposed that on 21.3.2000 at about 2.30 am the patient was brought by his father and he sent a ruqa to the SHO. He further stated Criminal Appeal No.80-DBA-2006 11 that around 3 cm x 2 cm cut shown with clear cut edges, was found in the abdomen of the injured. Slight oozing was present.It was further stated by the Doctor that globe finger could go beyond sheet into the abdomenal cavity with approximate depth of 4 cms. The doctor further opined that the injury was grievous, as it was caused by knife. He also gave the injury report Ex.PC containing the aforesaid facts. When the police request Ex.PD, was made before the Doctor,he appended his endorsement Ex.PD/1, to the effect that the opinion with regard to the nature of injury, had already been given, by the Medical Board, Civil Hospital,Bathinda. Dr.Satpal Garg,PW1, stated that on 30.3.2000 at 0.45 am, he along with Dr.Jugraj Singh Sandhu, SMO, and Dr.S.S. Romana,Surgical Specialist,Civil Hospital,Bathinda conducted the medicolegal examination of Jagdip Singh, as per the order of the Court of JMIC,Bathinda, and found the following injuries: 1. 14 cm. Long linear stitched with 11 stitches scar, pale solf and sensitive present 1 cm. right of midline extending from epigastirum running downward just below the umblicus.CT scan/MRI was advised. 2. 2. 5 cm long linear stitched with 4 stitched scar soft, pale and tender present on the left side of abdomen 2 c.m. From midline. CT Scan /MRI was advised. The probable duration of the injuries was within two weeks. Injury No.2 was declared as grievous whereas injury No.1 was the result of operation. During the course of his cross-examination, Dr. Satpal Garg, PW1, stated that the nature of injury was declared, on the report of the doctor of Delhi Nursing Home. He further stated that since the injury described in the medical report, showed the stitched scar marks,hence the breadth and depth of the same could not be determined. The CT Scan of this injury Criminal Appeal No.80-DBA-2006 12 was also got done, as is evident from the record, but that report did not see the light of the day nor was proved. It appears that that report might be going against the prosecution. Even the radiological examination of the injured was conducted but no X-ray report, was placed, and proved on the record. Dr. Sanjay Garg PW1 only with visual examination of the injury, caused on the person of the injured, came to the conclusion that it was grievous. He did not give reasons in the injury report as to why the injury was grievous. The visual examination of Dr. Sanjay Garg, PW1, to the effect, that the injury was grievous, could not make the same to be grievous. In these circumstances,the opinion of Dr.Sanjay Garg that he declared injury to be grievous, as it was caused by knife and the opinion of the Board of Doctors of Civil Hospital,Bathinda, that they declared the injury, to be grievous, on the basis of the report of Dr.Sanjay Garg, could not be said to be correct. In State of Punjab V.Manga Singh and another 1992(2) RCR 144, the doctor declared the injury grievous without X-ray examination, to probe depth of the cut. The opinion was based on visual observation. It was held that the opinion of the doctor, on visual observation, could not be accepted, and the injury could not be termed as grievous. In this view of the matter, no offence under Section 326 IPC, was made out. It could only be said that a simple injury, with sharp edged weapon, was caused, on the abdomen of injured by the accused, and as such, only an offence punishable under Section 324 IPC was made out. The submission of the Counsel for the respondents,in this regard ,being correct is accepted. 18. Whether the injury was caused on the person of the injured, in furtherance of common intention, or not, is the next question, that requires determination. The common intention is required to be gathered, from the facts, circumstances and the evidence on record. It was proved, from the evidence of Jagdip Singh,