IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 91 of 1994 Reserved on: 11.07.2008 Date of decision: 15.07.2008 State of H.P. ... Appellant Versus Naresh Kumar alias Nicha … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Yoginder Paul, 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 23.9.1993, vide which the respondent was acquitted of the charge framed against him under Section 304 I.P.C. Briefly stated, the facts of the case are that at 8.45PM, on 18.8.1991, a rapat was entered by the police that an information has been received from District Hospital Mandi that one Kunjbihari Lal is under treatment at the hospital and has been admitted there. On receipt of this information, a police officer visited the hospital and submitted an 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 application to the Medical Officer who gave his opinion that the patient admitted was not fit to make statement. The statement of the said injured was recorded on 19.8.1991 at 1.30PM after taking the opinion of the Medical Officer that he was fit to make statement. In the statement, the complainant had alleged that his mother was living separately from him alongwith his two younger brothers, while he was living in his in-laws’ house alongwith his family. He alleged that on 16.8.1991, at about 8.45PM, he received an information from one Vijay Kumar, his relative, that his mother Smt. Jamna Devi has been given beatings by his cousin brother Naresh Kumar, respondent and she has sustained injuries. It was further alleged that on receipt of this information he alongwith his wife Jaya Devi, son Karan and said Vijay Kumar went to the house of his mother at 9.10PM. It was alleged that when they reached the courtyard of her house, respondent came out of the house suddenly, gave him legs and fists blows and one leg blow was given in his stomach. He raised an alarm and his wife, son, Vijay Kumar and one Gajinder Kumar, neighbourer, rescued him from respondent who ran away from the spot. His mother was not present in the house and he learnt from Gajinder Kumar that she had gone to Police Chowki to lodge the report. He alongwith his son and wife came to Police Chowki and from there he came with his mother to Hospital and took medicines, but did not lodge the report. He further alleged that on 18.8.1991 he felt severe pain in his stomach because of the blow given and he came to the hospital where he was admitted by the Medical Officer. He had also shown O.P.D. slip to the Medical Officer which was prepared on 3 17.8.1991 and had also told the Doctor about the injuries. On receipt of the information, the police officer recorded the statement of the complainant in the Hospital at 1.30PM on the basis of which the case was registered. By 4.30PM, the information had been received by the Police Station as per Rapat No. 14 that said Kunjbihari Lal has died. After investigation, the challan was filed before the learned Judicial Magistrate who committed the case to the learned Sessions Judge, Mandi, resulting in his trial by the learned trial Court leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned Deputy Advocate General were that the statement of the injured/complainant Kunjbihari Lal had been duly corroborated by the statements of his wife PW-1 Jaya Devi, his son PW-2 Karan Sharma and PW-7 Gajinder Kumar, an independent witness and there were minor contradictions only in their statements and as such, the findings of the learned trial Court holding that the prosecution has not been able to prove their case can be termed as perverse calling for an interference by this Court. The learned counsel for the respondent had supported the impugned judgment for the reasons given therein. The first point considered by the learned trial Court was in regard to the delay in lodging of the FIR. It is clear from the statement made by the complainant Kunjbihari Lal under Section 154 Cr.P.C. Ext. PS that the occurrence took place on 16.8.1991, at about, 9.10PM in the courtyard of his mother Smt. Jamna Devi. The complainant as per the assertions made in this statement itself has stated that he had gone to 4 Police Chowki alongwith his wife and son from where he brought his mother to the hospital but did not lodge any report on that day though he had gone to the Police Post. He did not give any explanation for not lodging the report on 17.8.1991, though he alleged in his statement Ext.PS that he had gone to the hospital on 17.8.1991, got a OPD slip and got medicines prescribed from the Medical Officer. This clearly shows that not only he had gone to the Police Post on 16.8.1991 and he had gone there and he was also fit to go to the hospital on 17.8.1991 where he got OPD slip and the medicines prescribed, but did not go to the Police Post or Police Station to lodge the report. Even for 18.8.1991, he has not given any explanation why he did not lodge report though he has stated that since he felt severe pain, he went to the hospital where he was admitted on 18.8.1991. On 18.8.1991 at 7.15PM rapat Ext.PM had been registered at the Police Post that a person had been admitted in the surgical ward for treatment in regard to the injuries inflicted with legs and fists and thereafter, another report was entered Ext.PN at 8.45PM on the same day that the Medical Officer has opined that the injured was not fit to make a statement. However, the said Medical Officer has no where stated that he gave any such opinion on 18.8.1991 that the injured was not fit to make statement though three Medical Officers have been examined in the case. A perusal of the statement of PW-15 Dev Raj, H.C. Investigating Officer, P.O. City Chowki Mandi, shows that to enquire into report No. 16 dated 18.8.1991 Ext. PM, he had gone to the hospital, submitted an application Ext.PR for permission to record the statement of Kunjbihari Lal. He stated that the Doctor stated that since the injured 5 has been put on sedative as such he was not fit to make statement. He proved the said report of Medical Officer as Ext. PR/1. However, it has not been proved as to who give the opinion Ext.PR/1 on this application submitted by this witness, though three Medical Officers have been examined by the prosecution. PW-5 Dr. P.P. Vaidya has stated that the injured was admitted in their hospital at 4.15PM with a complaint of having been hit by someone in the abdomen three days back. He stated that the patient had been admitted by Dr. R.P. Tandon. He has also stated that the patient had been admitted in the hospital on 17.8.1991 and was examined by Dr. Chetan and Dr. S.S. Guleria as an outdoor patient and was prescribed some medicines and was allowed to go. The patient came on 18.8.1991 with severe pain and was then admitted. He nowhere stated that opinion at Ext. PR/1 was given by him. PW-6 Dr. S.M. Mehta had conducted the postmortem on the body of the deceased and has not stated about this opinion having been given by him at any time. The third Medical Officer examined is PW-17 Dr. Chetan who had tried to prove the OPD slips but since these were marked and were not proved according to law, these cannot be read in evidence. He has nowhere stated that this opinion on Ext.PR/1 was given by him. Thus, from the above discussion, it is clear that though the occurrence had taken place on 16.8.1991, the first statement made by the injured is on 19.8.1991 at about 1.30PM Ext.PS. Even if for the argument sake, the statement of the Investigating Officer is believed that a Medical Officer had opined that he was not fit to make statement, but there is no plausible explanation for not lodging the report on 16.8.1991 6 itself when the injured had gone to the Police Post and brought back his wife. He was fit to visit the hospital himself on 17.8.1991, but still did not lodge any report with the police and he was not in such a condition that he had to be admitted on 17.8.1991 and in case he had been admitted on 18th, the police had come to the hospital to record his statement, the fact remains that his statement was recorded on 19.8.1991, though he was admitted in the hospital on 18.8.1991 and it has not been proved that any Medical Officer gave an opinion that he was not fit on 18.8.1991 to make the statement. The subsequent observations were made by the Medical Officer Ext. PR/3, the patient was fit to give his statement. Statement is also undated and there is nothing to show that when this subsequent opinion was given by the Medical Officer. The learned trial Court had observed that the injured was a police constable who can be said to be aware of the effect of delay in lodging the report and, therefore, there has been a delay in lodging of the F.I.R., which has not been satisfactorily explained by the prosecution and this delay to much extent can be said to be fatal for the prosecution and in view of the contradictions and infirmities in the prosecution story as shall be referred to below, which delay does affect the prosecution case and its credibility. Coming to the statements of the material witnesses, the learned trial Court has observed from the statement of PW-1 Jaya Devi, widow of deceased, who has stated that the accused threw her husband in the muddy pool which is in the courtyard of her mother-in-law. Then he kicked her husband in his abdomen near the naval and her son Karan Sharma shouted “Mar Diya-Mar Diya”. The said Karan Sharma son 7 of the deceased who has been examined as PW-2 did not state that the accused threw his father in the muddy pool existing in the courtyard of the house, but he simply stated that the accused came out from his hiding and attacked his father. The independent witness Gajinder Kumar has been examined as PW-7 who has stated that he simply saw Kunjbihari Lal being brought out of the house and he had gone there on hearing the cries. He stated that Kunjbihari Lal was walking and Karan Sharma was holding his arm and Kunjbihari Lal had suffered injuries. He did not enquire from Kunjbihari Lal as to what had happened nor did he tell on his own as to how he suffered the injuries. He also stated that Kunjbihari Lal’s wife and son also did not tell him as to what has happened to Kunjbihari Lal. The learned trial had also referred to site plan Ext.PG prepared by PW10 Parveen Kumar in which every minor thing has been depicted but no water pool has been shown in the courtyard of the house. Thus, the learned trial Court had observed that non existence of the pool in the courtyard renders the statement of Jaya Devi regarding deceased having been thrown by the accused into the muddy pool at the first instance as false. The non-production of PW Vijay Kumar who was a material witness was held as one of the ground by the learned trial Court in disbelieving the statement of the prosecution witnesses. The learned trial Court had also observed that it looks improbable that the respondent will be hiding in the house of Jamna Devi when he knows that she had gone to Police Post to lodge a report against him for the beatings allegedly given to her and he will hide himself in the same house unaware that her son would be coming 8 to the house. The fact remains that the learned trial Court had rightly observed that only person who was to come to the house of the said Jamna Devi was she as well as the police in case the report was registered and there would be no occasion for the respondent to get himself hiding in the house to be apprehended by the police. The learned trial Court had also observed that the witnesses have stated that it was sufficiently dark when they went to the house where the accused was hiding himself, came out and gave blows but there is no mention of any electric pole near the house in the site plan prepared by the Investigating Officer. Thus, the learned trial Court had not believed the statements of the prosecution witnesses in view of the contradictions and infirmities in the prosecution story mentioned above apart from the delay in lodging of the FIR. The learned trial Court had also referred to the medical evidence which shows that the opinion given by the Medical Officer PW-6 Dr. S.M. Mehta about the cause of the death of the deceased was pulmonary infraction which could have been caused by old and neglected intestinal perforation, which would not have caused the death due to shock. The learned trial Court had also referred to the opinion of the medical expert as under:- “It is further opined by this medical expert that if someone is kicked and blow causes rupture to the intestine there would be instantaneous acute pain and it will be very difficult for the victim to bear. In case the alleged injury having been caused by the accused was the cause of death, apparently, the deceased would have been reeling under pain immediately after sustaining of the injury and would have thought of taking immediate medical treatment whereas no such treatment was taken by the deceased at least for one day after the alleged occurrence.“ 9 Thus, on the basis of the above discussion that the learned trial Court had also concluded that it cannot be held that the injuries allegedly inflicted by the accused were cause of the death of the deceased Kunjbihari Lal and the said findings recorded by the learned trial Court holding that the guilt of the respondent was not established beyond any reasonable doubt, cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( Deepak Gupta ), Judge ( V.K. Ahuja ) July 15, 2008 Judge (BSS)