IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 658 of 1996 Date of decision: 29.4.2010. State of H.P. …. Appellant. Vs. Prem Singh and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondents: Ms. Vidushi Sharma vice Mr. R.K.Sharma, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 12.9.1995 delivered by the learned Addl. Sessions Judge(1), Kangra at Dharamshala, in Sessions Trial No. 6 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 307 and 342 read with Section 34 of the Indian Penal Code. The prosecution case is that on 15.1.1989, PW-3, Santosh Lal made a complaint to the police which was recorded as a statement under Section 154 Cr.P.C. In this complaint he alleged that his cousin Gopal Singh was the owner of truck No. HPK- 1166. Dhian Chand PW-6 was employed as cleaner of the truck and Kishori Lal was employed as driver of the truck. These two persons informed him on the night of 14.1.1989 that at about 2.30 p.m on 14.1.1989 when Gopal Singh alongwith these two witnesses was near Nagbari then Sardari Lal s/o Sohan Singh, 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Ramesh and Prem Singh accused signaled for the truck to stop. Then Gopal Singh was taken by the accused persons behind a factory at Nagbari. After some time, Kishore Chand and Dhian Chand heard the cries of Gopal Singh. They went towards the place from where the sounds were coming and saw that Sardari and Ramesh accused had caught hold of Gopal Singh by his arms and Prem Singh was giving him blows with an iron rod. They tried to rescue Gopal Singh and while doing so Dhian Chand was also beaten up and given kicks and fist blows. Gopal Singh suffered a serious wound on his head and was taken to the hospital at Nurpur and in the night he was referred to CMC, Ludhiana. In this complaint, it was alleged that Dhian Chand told the complainant PW-3 that accused Prem Singh made Dhian Chand sit in his truck till late at night. According to the prosecution, the injured Gopal Singh regained consciousness on 16.1.1989. He returned to Nurpur on 17.1.1989 and then his statement was recorded by the police. The accused were arrested and alleged to have made some disclosure statement which led to the recovery of an iron rod. After investigation, challan was filed against the accused. They pleaded not guilty and claimed trial. After trial they have been acquitted. Hence this appeal by the State. At the outset, we may state that there are some glaring circumstances in this case which show that the investigation has not been fair. PW-5 Dr. D.R.Riyal, was posted as Senior Medical Officer in Nurpur hospital at that time. According to him on 3 14.1.1989 injured Gopal Singh was brought to the hospital by Kishori Lal in an injured condition. Since it was disclosed to the doctor that the injured had suffered injuries in an assault he immediately sent a Rukka Ext.PD to the SHO Police Station Nurpur informing the police about the fact that Gopal Singh S/o Dhani Ram had been brought to the hospital in an injured condition by his driver Kishori Lal with history of assault. At 6.10 p.m. on 14.1.1989 an application was made by some police official from the Police Station, Nurpur, to the doctor that the statement of Gopal Singh injured is to be recorded. The doctor made his endorsement Ext.PE on the said application to the effect that the patient is unfit for statement as he is under the effect of some injection. The doctor also examined Dhian Singh at 11.35 p.m on 14.1.1989 and observed a minor injury on him. In cross-examination this witness has clearly stated that at the time of examination Gopal Singh was conscious. This witness stated that Rukka was sent at about 5.30 p.m and the police reached the spot and thereafter he issued MLC Ext. PC. The witness also stated that before he examined the injured he inquired from him whether he was willing to be examined. The patient informed him that he had no objection to be examined. This shows that during this time the patient was fit to make a statement but thereafter a sedative injection was given to the patient and thereafter Gopal Singh could not make a statement. The question which arises is as to why the police at Nurpur did not lodge an F.I.R. immediately after receipt of Rukka Ext.PD. 4 A cognizable offence had been disclosed in the Rukka itself. Even taking the police case at its best when the police came to the hospital they had come to know about the injuries suffered by the injured and were aware that he was unconscious. It was the duty of the police to have recorded the F.I.R there and then. There is no explanation as to what prevented them from recording the statement of driver Kishori Lal in the hospital itself. Why was the recording of the F.I.R. delayed till the next morning and a story cooked up that Dhian Singh and driver went to the house of PW-3 at Baduhi late at night. The doctor stated that he examined Dhian Singh at 11.35 p.m and issued M.L.C. Ext.PF in this behalf. PW-3 stated that at the relevant time there was no road connecting Baduhi to Nurpur and that the Baduhi is situated at a distance of 7 kilometer from Nurpur. How did Dhian Singh and Kishori Lal reached Baduhi and at what time? There is no answer to these questions. PW-9 the Investigating Officer has totally denied any knowledge of Rukka Ext.PD. He has made a false statement that the hospital is at a distance of one kilometer from Police Station because at that time the police station and the hospital were virtually adjacent to each other. According to this witness, he did not even know whether the police had any information about the occurrence. We cannot believe the statement of such an Investigating Officer who denies knowledge of Rukka Ext.PD and the certificate Ext.PE given on the application made by the police. 5 In addition thereto, we find that the learned trial Court has observed in respect of a number of statements recorded under Section 161 Cr.P.C that the copy of the statements furnished alongwith the challan is different and there are material additions and alterations in the copies of the statements furnished to the accused. The learned trial Court has rightly observed that these interpolations in the copies of the statements handed over to the accused which have been made lateron. These facts clearly indicate that the investigation has not been fair and therefore, no reliance can be placed on the version of the prosecution. In addition thereto, it is more than obvious that witnesses PW-2 Ramesh Chand and Shiv Kumar (not examined) were added at a later stage. Their names did not find place in the first complaint. Their names did not even find place in the statement of the injured recorded under Section 161 Cr.P.C. on 17.1.1989, three days after the incident. The version as to how the incident took place is also not consistent. According to one version only Sardari Lal stopped the vehicle whereas according to the other version all the three accused stopped the vehicle. According to one version Sardari Lal shook hands with the injured and thereafter the injured was taken behind the factory where the other two accused were hiding whereas this was not stated in the initial complaint. Furthermore, according to the initial version Kishori Lal and Dhian Chand heard the cries of the injured and they rushed towards the spot but according to PW-2 Ramesh Chand some persons came 6 and informed them that PW-1 Gopal Singh was being beaten by some person and then they went towards the spot and thereafter heard the cries of injured. All these material contradictions in the statement of the witnesses clearly show that they are not telling the truth and hiding something from the Court. Why was a false case concocted after two days? The investigation was not fair and in fact it is clear that the investigation is biased. We, therefore, find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 29th April, 2010. (Rajiv Sharma) ™ Judge.