IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 179 of 1996 Date of decision: 19.4.2010. State of H.P. …. Appellant. Vs. Dapinder Singh and another ... 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: Mr. Sudhir Sharma, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 28.10.1994 of the learned Additional Sessions Judge, Una in Sessions Case No. 3/94(92) whereby he acquitted the accused of having committed offences punishable under Sections 326/307/447 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that PW-1 Chander Mohan lodged a complaint with the police on 10th May, 1990 at about 9.50 a.m. to the effect that on 9th May, 1990 at about 12 noon he alongwith his brother Surinder Lal (PW-2) had gone to the fields, which they had purchased from Smt. Kartaro Devi, widow of Shri Om Prakash and some others. They were accompanied by one Billa, who was driving the tractor. Their intention was to plough the fields and Surinder Lal was sitting on the side of the fields on a cot. According to the complainant, 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Baldev Singh (father of the accused) alongwith two accused Dapinder Singh and Nardev Singh, their mother Raksha Devi and sisters Soma Devi and Parmila Devi came there. Accused Nardev Singh was armed with a Drat, while the others were armed with sticks. All the aforesaid persons attacked PW-2 Surinder Lal. Accused Nardev Singh gave a Drat blow which hit Surinder Lal on his head as a result of which he became unconscious. Nardev tried to give another blow of Drat on the neck of Surinder Lal but the same hit the injured on his right hand. In the meantime, the complainant Chander Mohan and tractor driver Billa went towards the spot. They were also beaten by Baldev Singh and accused Dapinder. The alarms raised by them attracted Jaspal, another brother of the complainant and one Shri Pitambar Dutt who rescued them from the accused. According to the averments made in the complaint, complainant Chander Mohan snatched the Drat from the accused Nardev. Thereafter, PW-12 Joginder Pal also came to the spot and is said to have witnessed the occurrence. The injured Surinder Lal was taken to the hospital in an unconscious state. He was examined by PW-5 Dr. Rajni Sharma, who found that the injuries on the person of the injured were simple in nature. Thereafter, the injured was shifted to the PGI at Chandigarh and PW-11 gave his opinion that the nature of injuries sustained on his head by Surinder Lal was grievous vide 3 his report Ext.PM. The police investigated the matter and after completion of the investigation challan was filed against the accused. The accused in defence have not denied the occurrence. The story put up by the accused is that there was a dispute regarding the possession of the land and 5 days prior to the incident i.e. on 4th May, they had obtained a stay order from the Court restraining the complainant from interfering in this land and despite this stay order the complainant side accompanied by some other persons tried to forcibly dispossess the accused from the land and the fight did take place. According to the accused the injuries which were caused to Surinder Pal were in fact caused by his brother PW-1 Chander Mohan. It is alleged that Chander Mohan tried to attack Baldev father of the accused but he managed to escape and the Drat then hit PW-2 Surinder Lal, brother of the accused. After trial the accused have been acquitted. Hence the present appeal by the State. We have heard Shri Vivek Singh Thakur, learned Additional Advocate General and Shri Sudhir Sharma, learned counsel for the accused. At the outset we may note that there is delay of almost 22 hours in lodging the F.I.R. Delay in lodging the F.I.R may itself not be fatal to the prosecution in every case but the prosecution must make out reasonable grounds explaining the delay in 4 lodging the F.I.R. In the present case, admittedly injured Surinder Lal was taken to the hospital within 15 to 20 minutes of the incident. Admittedly, this was a case where according to the prosecution the injuries had been sustained by the injured on account of an assault on him with a dangerous weapon. If this version had been given to the doctor it was the duty of the doctor to have called the police and reported the matter to the police. The explanation given by PW-1 Chander Mohan is that since his brother was unconscious the police did not record the F.I.R and waited for him to gain consciousness. This explanation does not appear to be true. Once the commission of a cognizable offence is alleged then it is the duty of the police to record the F.I.R. especially in a case when the injured has already been taken to the hospital. It is also the prosecution case that the police was informed about the incident within 1 to 1-½ hours of the incident. This gives rise to the question as to why the F.I.R was not lodged immediately. Was it delayed with a view to enable the prosecution to concoct a false story? Such a possibility cannot be ruled out. Therefore, in these circumstances, since the F.I.R has been lodged after an inordinate delay there is reason to scrutinize the prosecution evidence with greater care and caution. In these circumstances, if there are contradictions then the benefit of such contradictions will have to be given to the accused. 5 Another important factor is that there is divergence of medical opinion as to whether the injury is simple or grievous. According to PW-5 Dr. Rajni Sharma, who first examined the injured Surinder Lal immediately after the incident. She had found him in a conscious state but unable to speak. She found the injuries to be simple but reserved her final opinion after receipt of the report of the Radiologist. Even after the report of the Radiologist so received she again opined that this report only reveals a depression in the parietal bone and did not disclose that the same had been fractured and thus ruled out the possibility of a grievous injury. However, Dr. R.C.Thakur, PW-11, who treated the injured Surinder Lal at PGI in his statement in Court stated that not only there was a depression but also evidence of a fracture. However, his report Ext.PP on Ext.PM does not show that he ever opined that there was any fracture. The said report read as follows:- “Injury could have been dangerous to life if not operated in time.” Section 320 of the Indian Penal code defines grievous hurt as under:- “320. Grievous hurt.- The following kinds of hurt only are designated as “grievous”:- First.- Emasculation. Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear. 6 Fourthly.- Privation of any member or joint. Fifthly.- Destruction or permanent impairing of the powers of any member or joint. Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth. Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” The injury as caused to Surinder Lal does not fall in any of the first seven injuries designated as grievous. It may fall under clause eighthly which provides that any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain or unable to follow his ordinary pursuits is a grievous injury. Injury should be such in nature that it should be dangerous to life for it to fall under first part of clause eighthly. In this case, PW-11 has given a guarded opinion. His opinion is that if the patient is not operated upon then the injury could be dangerous. This is different from saying that the injury by itself was dangerous. Therefore, not much reliance can be placed on the opinion of the doctor (PW-11). Coming to the facts of the case itself we find that as per the complaint Ext.PA when the complainant Chander Mohan alongwith his injured brother Surinder Lal went to the spot they were accompanied by Billa who was the driver of the tractor. Thereafter, when they raised an alarm their brother Jaspal and Pitambar Dutt also reached the spot. None of these three 7 persons have been examined in Court. The person who was examined in court is PW-12 Joginder Pal, whose presence on the spot itself is doubtful since he belongs to Punjab and has not given any valid reason for being on the spot. Furthermore, according to the first version given in the complaint Joginder Pal came to the spot after the other three persons arrived. Therefore, even if he could have witnessed the occurrence he could have only witnessed the last portion of the occurrence. The occurrence itself has not been denied. His evidence looses any probative value especially in view of the fact that his statement was recorded by the police on 11th November, 1990 more than six months after the incident. This clearly shows that his statement is totally unreliable. Another damaging aspect of the case is that according to the complainant he snatched the Drat from accused Nardev at the spot itself. He also states that he wanted to hand over the Drat to the police but the fact is that the Drat was actually handed over to the police about two months after the incident. This makes the recovery of the Drat extremely doubtful and the Drat cannot be linked with the injury. As pointed out above, the accused have not denied the incident. It has come on record that they had obtained a stay order in their favour. It may be true that the stay order was later 8 vacated but the fact remained that at the time of occurrence there was a stay order existing in favour of the accused. Keeping in view the aforesaid discussion, we feel that the learned trial Court was fully justifying in acquitting the accused. We find no reason to interfere in the judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 19th April, 2010. (Rajiv Sharma) ™ Judge.