IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 266 of 2000. Judgment reserved on: 13.8.2008 Date of decision: 19.9.2008 Ajay Guleria …….Appellant Vs. State of Himachal Pradesh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General. Kuldip Singh, Judge. This appeal has been directed against the judgment dated 10.5.2000 passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No.14-P/VII/99 convicting appellant under Sections 326, 201 IPC and sentencing him to undergo rigorous imprisonment for a period of four years and fine of Rs.25,000/-, in default of payment of fine further rigorous imprisonment for a period of one year under Section 326 IPC, rigorous imprisonment for a period of six months and fine of Rs.1,000/-, in default of payment of fine further rigorous imprisonment for a period of one month under Section 201 IPC with the direction that both the sentences shall run concurrently, fine when realized shall be payable to the injured after Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… the expiry of period for filing the appeal, in case of appeal as per the order of the appellate Court. 2. The appellant and three more accused namely Satish Chand, Sanjay Singh, Sanjay Guleria were prosecuted on the basis of FIR No.301 dated 25.10.1998 Ex.PW-16/B, Police Station, Palampur for having committed offence punishable under Sections 307, 201, 120-B and Section 34 IPC. The accused Satish Chand, Sanjay Singh and Sanjay Guleria were acquitted by learned Sessions Judge but accused Ajay Guleria alias Aju was convicted and sentenced as noticed above. 3. The prosecution case in brief is that PW-1 Ravinder Kumar was previously known to all accused, he worked with accused Satish Chand in the year 1996 as a salesman at his liquor vend. Accused Sanjay Singh alias Sanju is brother-in-law (wife’s brother) of accused Satish Chand. Satish Chand and Sanjay Singh about five days prior to Diwali met PW-1 Ravinder Kumar, Satish Chand offered him to get some work. On 25.10.1998 at about 6 PM PW-1 Ravinder Kumar along with PW-5 Shyam Lal and PW-6 Pardeep had gone to the shop of PW-3 Bimal Kumar barber at Bhikashah. PW-1 Ravinder Kumar went inside the shop, PW-5 Shyam Lal and PW-6 Pardeep Kumar remained out side the shop. PW-3 Bimal Kumar started applying soap on the face of PW-1 Ravinder Kumar, in the meantime, a white fiat car bearing registration No.556 stopped ahead of the barber shop. Sanjay Singh was driving the car and Sanjay Guleria was also sitting in the car. Ajay Guleria came out of the car with a sword in his hand. A ‘nakabposh’ person who was having a ‘drat’ in …3… his hand also came out of the car. They came inside the shop of PW-3 Bimal Kumar, Aju gave a sword blow on the right hand of PW- 1 Ravinder Kumar and ‘nakabposh’ man gave a blow with ‘drat’ on the left hand of Ravinder Kumar, who fell down and accused Aju gave another sword blow on the right leg of Ravinder Kumar. Both the accused after inflicting blows left in the same car and PW-3 Bimal Kumar fled away from the shop. After the accused had left, PW-5 Shyam Lal, PW-6 Pardeep came inside the shop and assisted PW-1 Ravinder Kumar, who was crying with pain. 4. PW-5 Shyam Lal tied the towel on the hands of injured Ravinder Kumar. PW-6 Pardeep Kumar managed a van, Krishan Kumar younger brother of the injured also reached the spot and all of them took the injured to the hospital. PW-9 Dr. S.K. Kaul, Medical Officer attended the injured who informed the police vide Ex.PH which was entered in daily diary by Ajit Singh, a copy Ex.PW-16/A. PW-14 SI Narvir Singh went to the hospital, submitted an application Ex.PW- 14/A to the medical officer for recording the statement of injured and there upon recorded the statement Ex.PA of injured Ravinder Kumar in presence of medical officer, which was read over to Ravinder Kumar and his thumb foot impression was taken since both the hands of injured were cut. The statement of injured was attested by medical officer PW-9 Dr. S.K. Kaul. The statement Ex.PA was sent to police station through constable Jaimal Singh on the basis of which PW-16 HC Ajit Singh recorded the FIR Ex.PW-16/B. 5. PW-12 SI Ramesh Chand, incharge, Police Post, Bhawarna investigated the case but could not do much investigation …4… as people were raising slogans against the incident. He again visited the spot next day at about 7.30 a.m., took photographs Ex.PJ/1 to Ex.PJ/5. He also took into possession blood, hair, blood stained earth in separate bottles. He prepared spot map Ex.PK, recorded the statements of witnesses. Sanjay Singh was arrested at about 2 PM, Satish Chand was also arrested on the same day. The file was sent to PW-13 Jagannath SHO, Police Station, Palampur, who further investigated the case. He recorded the statements of PW-5 Shyam Lal and other witnesses and gave the file to Sub Divisional Police Officer. The case was again investigated by PW-12 SI Ramesh Chand, who took into possession pant Ex.P-3, shirt Ex.P-4 of injured vide memo Ex.PC. The case was also investigated by PW-15 Mohan Lal SI of State C.I.D. who on 1.12.1998 arrested Ajay Guleria. On 4.12.1998 Ajay Guleria made a disclosure statement Ex.PB and on the next day got recovered sword Ex.P-1 and ‘drat’ Ex.P-2 which were taken into possession vide memo Ex.PD in presence of witnesses. He prepared sketch map Ex.PF, site plan Ex.PW-15/A and arrested Sanjay Guleria on 16.12.1998. It was found during investigation that registration number displayed on the car was in fact the registration number of a scooter which was lying out of order for the last 1 ½ years prior to the date of incident. PW-9 Dr. S.K. Kaul examined injured Ravinder Kumar and issued MLC Ex.PG. He found three injuries on the person of the injured and referred him to Zonal hospital, Dharamshala for further management. The injuries No.1 and 2 were found grievous and injury No.3 simple and were possible with ‘drat’ and sword. The ‘drat’ and sword were …5… sent to Chemical Examiner, F.S.L. Junga, reports Ex.PX and Ex.PY were received from the Chemical Examiner. On completion of investigation, challan was presented in the Court and all four accused were charged for offence punishable under Sections 307, 201, 120-B and Section 34 IPC, to which they pleaded not guilty and claimed trial. The prosecution has examined 16 witnesses. The statements of accused except accused Satish Chand were recorded under Section 313 Cr.P.C. and were heard under Section 232 Cr.P.C. and given an opportunity to lead evidence in their defence, however, no evidence in defence was led by the accused. The learned Sessions Judge on conclusion of trial acquitted accused Satish Chand, Sanjay Singh alias Sanju and Sanjay Guleria alias Sanju but convicted accused Ajay Guleria alias Aju as noticed above, hence the present appeal by Ajay Guleria alias Aju. 6. I have heard Mr. Rakesh Jaswal, learned counsel for the appellant and Mr. Anshul Bansal, learned Addl. Advocate General for the State and gone through the record. Mr. Rakesh Jaswal has submitted that there is delay in sending copy of FIR to illaqua Magistrate, the learned Sessions Judge has not properly appreciated the material on record and has erred in convicting and sentencing the accused Ajay Guleria alias Aju. He has submitted that identity of Ajay Guleria has not been established for the commission of offence. The learned Sessions Judge has adopted different yard sticks while appreciating evidence and convicting the appellant- accused and acquitting the remaining accused. Ajay Guleria was arrested on 1.12.1998. The disclosure statement Ex.PE of Ajay …6… Guleria recorded on 4.12.1998 is not voluntary, the recovery of sword Ex.P-1 and ‘drat’ Ex.P-2 pursuant to disclosure statement is not legal and therefore, the same is not admissible and cannot be relied for convicting Ajay Guleria. It has also been submitted that material witnesses have not supported the prosecution case. The statement of PW-1 has not been corroborated by other prosecution witnesses, the learned Sessions Judge has erred in relying the statement of PW- 1. It has been submitted that the prosecution has miserably failed to prove the case against the accused-appellant under Sections 326, 201 IPC. The learned Addl. Advocate General has supported the impugned judgment and has submitted that the learned Sessions Judge has rightly appreciated the material on record in convicting and sentencing the appellant-accused. In order to appreciate the case of either side, it is necessary to refer to evidence which has come on record. 7. PW-1 Ravinder Kumar alias Fallu has stated that on 25.10.1998 he along with Pardeep and Shyam Lal had come to barber shop of Bimal Kumar at Bhikashah at 6 p.m. He went inside the shop, Pardeep and Shyam Lal stood ahead of the shop at some distance. A white fiat car bearing registration No.556 stopped ahead of the barber’s shop. He saw Sanju on the driver seat, another Sanju was also sitting in the car. In the meantime Ajay Guleria came out of the car with a sword in his hand, a ‘nakabposh’ person having a ‘drat’ in his hand also came out of the car. They came inside the barber shop, Aju gave a blow with sword on his right hand. The ‘nakabposh’ person gave a blow of ‘drat’ on his left hand. He fell down and Aju …7… accused gave another blow with sword on his right leg. Both the accused after inflicting blows left in the same car. He was taken to Palampur hospital. He was examined by doctor and his statement Ex.PA was recorded by the police. He remained admitted in the hospital for 26 days. He identified sword Ex.P-1 and ‘drat’ Ex.P-2 with which he was given blows. In cross-examination he has denied the suggestion of the defence that at the instance of police as well as Shyam Lal and Pardeep, the name of Ajay Guleria was falsely introduced. He has also denied the defence version that he was attacked by only ‘nakabposh’ person and he implicated other accused due to enmity and suspicion. 8. PW-3 Bimal Kumar has stated that he knew Fallu and accused present in the Court. He was running a barber shop at Bhikashah. On 25th October last year at about 6 p.m. Fallu alias Ravinder had come to his shop for having shave. One person with muffled face came and struck 2/3 blows on Fallu and he got frightened. He cannot say how that person came in the shop as he was busy in shaving. He was declared hostile and cross-examined by the prosecution. In the cross-examination conducted by the prosecution he has stated that he did not see any injury on the person of Fallu as he was frightened. He ran away from his shop to his house. The police had recorded his statement. He admitted that blood stained hair and earth lying on the spot were taken into possession by the police in two separate bottles. The court observed that the witness is hard of hearing and appears to be simpleton. …8… 9. PW-5 Shyam lal has stated that he knew Fallu alias Ravinder Kumar and the accused present in the Court. He has further stated that last year, the date and month he does not remember, he along with Pardeep and Fallu came to Bazar Bhikashah . Fallu wanted to have shave at the shop of barber. Fallu went inside the shop of Bimal Kumar and he along with Pardeep came to the Bazar side. Thereafter they heard the noise from some distance “Kat diya Kat diya “. He saw one person ‘nakabposh’ coming from the shop of Bimal Kumar with a big sword in his hand. He went and ran away on a scooter standing at some distance from the shop of Bimal Kumar. This witness was also declared hostile and cross-examined by the prosecution. In the cross-examination conducted by the prosecution he has stated that the occurrence took place at about 6 pm on 25.10.1998. He has also admitted that police came in the hospital and recorded the statement of Fallu in presence of the medical officer. In cross-examination conducted by the defence he has denied the suggestion that the statement of Fallu was recorded by the police at the instance of PW Pardeep Kumar. PW-6 Pardeep Kumar has stated that he knew all accused and Fallu. On 25.10.1998 Fallu told them that he wanted to get himself shaved. He went to the shop of Bimal Kumar barber. No person entered the shop of Bimal Kumar in his presence. This witness was also declared hostile and cross-examined by the prosecution. In the cross-examination conducted by the prosecution he has stated that doctor called the police at Palampur hospital and thereafter the statement of Ravinder Kumar was recorded by the police in the …9… presence of doctor. Pant Ex.P-3, shirt Ex.P-4 of Fallu were taken into possession by police vide memo Ex.PC. He denied that in his presence on 5.12.1998 Ajay Guleria got recovered sword and ‘drat’ from the bushes near Nagni bridge. He admitted his signature on memo Ex.PD but stated that Ex.PD was signed by him at the police post. 10. PW-8 Ashok Kumar has stated that he is in State CID since last four years. On 4.12.1998 Ajay Guleria gave a statement Ex.PE that he can get recover sword and ‘drat’ which he had hidden. The statement was signed by him and one Suresh Kumar as well as Ajay Guleria. On 5.12.1998 Ajay Guleria got recovered sword and ‘drat’ from the bushes near Nagni bridge which were sealed by the police on the spot and taken into possession vide memo Ex.PD which is signed by him and other witness. Ex.P-1 sword and Ex.P-2 ‘drat’ are the same which were recovered at that time. In cross- examination he has stated that a person was already standing at the place from where these weapons were recovered. 11. PW-9 Dr. S.K. Kaul examined Ravinder Kumar on 25.10.1998 at 7.45 pm and noted the following injuries on his person:- 1. There was clear amputated wound at the level of right wrist joint except a thin skin tag attachment on the flexor aspect. Right hand was completely severed all related muscles vessels tendon and bone were cut. The sound was profusely bleeding. 2. obliquely running amputated wound 1 to 1 ½ distal to the left wrist joint causing severing of left thumb index, middle and …10… ring finger, 3 ½ “ in length. The wound was profusely bleeding. 3. An incised wound on the front surface and middle of right leg 2 ½ “ in length into skin deep x 1” in breadth. There was fresh coze from the wound. The nature of injuries 1 and 2 according to PW-9 is grievous and that of injury NO.3 simple and the weapon used was sharp. The probable duration was 1 to 4 hours. He issued MLC Ex.PG. He has also opined that injuries 1 to 3 are possible with sword and ‘drat’ like Ex.P-1 and Ex.P2 shown to him in the Court. He has also stated that he informed the police when the patient was brought to the hospital, vide letter Ex.PH. The police came and thereafter statement Ex.PA was recorded by the police of the injured in his presence which also bears his signature and the time of completion was 8.15 pm. In cross-examination he has stated that the injured was conscious at that time. He can not say the number of persons present, but when he recorded the injuries in the MLC some relatives of the injured were present. He denied that he was not present when the statement Ex.PA of the injured was recorded by the police. He has also denied that the police obtained his signature on Ex.PA after lapse of considerable time. 12. PW-12 SI Ramesh Chand has stated that in the year 1998 he was posted as ASI/incharge, Police Post, Bhawarna. On 25.10.1998 at 9.45 pm he received the case file from Police Station, Palampur. He started the investigation and searched the accused. On 26.10.1998 at 7.30 A.M. he inspected the spot and took into …11… possession blood, hair, blood stained earth in separate bottles and sealed the same. He recorded the statements of Bimal Kumar etc. He arrested Sanjay Guleria at 2 pm and Satish Kumar on the same day. Thereafter the investigation was conducted by SHO Jagannath. The investigation of the case was handed over to him on 9.11.1998. PW Pardeep Kumar produced the clothes of Fallu. The investigation was thereafter handed over to CID. 13. PW-13 Inspector Jagannath has stated that since June 1998 he has been posted as SHO, Police Station, Palampur. On 26.10.1998 he resumed his duties in the evening and took the investigation of the case from Incharge police post, Bhawarana on 27.10.1998. 14. PW-14 Narvir Singh SI, Police Station, Palampur has stated that he has been posted SI at Police Station, Palampur since August 1998. On 25.10.1998 at about 8 pm he received a ruka from Palampur hospital. He entered the ruka in the daily diary and proceeded to the hospital along with constable. He submitted an application Ex.PW-14/A to the medical officer for recording the statement of injured Ravinder Kumar. After obtaining the opinion of medical officer he recorded the statement Ex.PA of injured Ravinder Kumar in the presence of medical officer. The statement was read over to Ravinder Kumar and thereafter thumb impression of his foot was taken since his both hands were cut. The statement was attested by the medical officer. This statement was completed at about 8.15 pm and he sent the said statement to the police station for registration of the case. He has denied that the number of the car …12… and the occupants of the car were introduced at the instance of Pardeep Kumar and Shyam Lal. 15. PW-15 Mohan Lal, State CID has stated that investigation of the case was handed over to him on 18.11.1998. On 1.12.1998 he arrested Ajay Guleria who made disclosure statement Ex.PE on 4.12.1998 and on that basis on 5.12.1998 Ajay Guleria got recovered one sword Ex.P-1 and ‘drat’ Ex.P-2 vide memo Ex.PD. He verified from licensing authority Dharamshala and found that the number of car given as HPK 556 was in fact of a scooter which was lying out of order for the last 1 ½ years prior to the incident. In cross-examination he has stated that the disclosure statement of accused was recorded on 4.12.1998 at 9 pm. The place of recovery was at a distance of 7 KMs from the police post, Bhawarna, where the disclosure statement of the accused was recorded. He has denied that both the weapons were recovered from the place which was already known to him and one of his person was already standing there. 16. PW-16 HC Ajit Singh has stated that on 25.10.1998 at about 8.05 pm he received ruka Ex.PH from doctor and recorded rapat No.26, copy of which is Ex.PW-16/A. Thereafter SI Narvir Singh along with constable Jaimal Singh were sent to sub divisional hospital, Palampur for taking further necessary action . At 8.55 pm another ruka Ex.PA was received from Narvir Singh SI through constable Jaimal Singh on the basis of which he recorded FIR Ex.PW-16/B, a copy of FIR was sent to the Illaqua Magistrate on the next morning. The residence of the Magistrate is at a distance of 10- …13… 15 minutes walk from police station. The Chemical Examiner reports Ex.PX and Ex.PY were tendered in evidence. Ajay Guleria in his statement under Section 313 Cr.P.C. has denied the prosecution case and pleaded his innocence. He led no evidence in defence. 17. It has been submitted on behalf of the appellant that FIR Ex.PW-16/B was registered at about 8.55 pm on 25.10.1998, but a copy of FIR was received by learned Addl. Chief Judicial Magistrate, Palampur at 2.23 pm on 26.10.1998 and thus there is delay in sending the FIR to the illaqa Magistrate. The incident took place at about 6 pm on 25.10.1998, the injured was taken to hospital and the medical officer on 25.10.1998 vide ruka Ex.PH informed SHO, Police Station, Palampur that Ravinder Kumar has reported in the hospital with alleged history of attack by some persons with sword. The ruka Ex.PH was written at 8 pm which was entered by way of rapat No.26 in daily diary on 25.10.1998 Ex.PW-16/A. There upon PW-14 Narvir Singh SI went to Palampur hospital and recorded the statement Ex.PA of injured Ravinder Kumar which was completed at 8.15 pm. PW-9 Dr. S.K. Kaul has stated that statement Ex.PA of Ravinder Kumar was recorded in his presence and it bears his signature also. In these circumstances FIR was recorded promptly at 8.55 p.m. on 25.10.1998. It has not been pointed out how delay, if any, in sending a copy of FIR to the Illaqa Magistrate has caused any prejudice to Ajay Guleria. In Pala Singh and another vs. State of Punjab, AIR 1972 SC 2679, Sarwan Singh and others vs. State of Punjab , AIR 1976 SC 2304, it has been held that delay in dispatch of the FIR is not a circumstance which can throw out the prosecution case in its …14… entirety. In Sushil and others vs. State of U.P. 1995 SCC( Cri) 388, it has been held that delay in sending FIR to the Magistrate is not fatal to the prosecution case unless prejudice is shown to have been caused to the accused by such delay. In the present case no case of prejudice has been made out, therefore, delay, if any, in sending a copy of the FIR to the Magistrate is of no consequence. 18. The learned counsel for the appellant has submitted that learned Sessions Judge has adopted different yard sticks for Ajay Guleria and other accused while appreciating the evidence. It has been submitted that prosecution witnesses including injured PW-1 have not been believed for other accused but, the prosecution case has been believed so far Ajay Guleria appellant is concerned. He has submitted that prosecution has one story which is indivisible and therefore, Ajay Guleria is also entitled to same benefit which learned Sessions Judge has extended to other accused while appreciating the evidence. The learned counsel for the appellant has submitted that immediately after the incident PW-1 Ravinder Kumar came in contact with PW-9 Dr. S.K. Kaul and PW-1 did not disclose the name of Ajay Guleria for attacking him to PW-9 Dr. S.K. Kaul, therefore in ruka Ex.PH, PW-9 Dr. S.K. Kaul has not named Ajay Guleria. He has submitted that PW-3 Bimal Kumar, PW-5 Shyam Lal and PW-6 Pardeep Kumar star witnesses of the prosecution have turned hostile and did not support the prosecution. In these circumstances, it is not safe to rely on the statement of PW-1 Ravinder Kumar injured who is a highly interested witness. …15… 19. The defence has not denied the incident. The question in the present case is whether Ajay Guleria inflicted sword blows on the person of PW-1 or not?. In Major Singh and another vs. State of Punjab (2006) 10 SCC 499, the Hon’ble Supreme Court has held that contention cannot be accepted that since some accused have been acquitted therefore, the entire case has to be rejected. In the present case, involvement of Ajay Guleria is to be seen independently in the commission of offence even though other accused have been acquitted. PW-1 Ravinder Kumar is the injured and after the incident, to begin with as per Ex.PH, he disclosed to PW-9 Dr. S.K. Kaul that he had been ‘attacked by some persons’ with sword in barber’s shop. In other words, there were more then one person when PW-1