Crl. Appeal No. 739-SB of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 739-SB of 2010 (O&M) Date of Decision : December 17, 2010 Subhash ........Appellant Versus Birbal and others ........Respondents ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Namit Sharma, Advocate, for the appellant. SABINA, J. Respondents were tried tried for an offence under Sections 323,325/34 of Indian Penal Code by the trial Court. Vide judgment dated 20.2.2008 and order dated 25.2.2008, passed by the trial Court, respondents were convicted and sentenced qua the said offences. The said judgment/order of conviction and sentence were set aside by the Appellate Court in appeal vide judgment dated 15.7.2009. Hence, the present appeal. The prosecution story in brief as noticed by the Additional Session Judge in para 2 of the impugned judgment reads as under :- “Complainant Subhash and his brother had installed a tubewell in their fields. Their neigbourer Lakhi Ram started using their water- course for irrigating his fields and in this regard they were litigating. On 8.7.2006 at about 8 A.M. when the complainant was taking rest in front of his house all the accused armed with deadly Crl. Appeal No. 739-SB of 2010 (O&M) 2 weapons came there and started giving beatings to him. They all raised Lalkara to teach a lesson to the complainant for not allowing them to use the alleged water course. In the meantime accused Birbal gave a lathi-wise blow with Jaily which hit on the head of the complainant. Accused Stat Narain also gave two lathi blows on his both arms. When his brothers Surjit and Raghbir came to rescue the complainant they were also given beatings Rajinder brother of the complainant also reached the spot. Thereafter the accused went away along with their retrospective weapons. All the injured were taken to the hospital. On 12.7.06 injured Raghbir, Surjit and Rajender were referred to PGI Rohtak. On the basis of statement of the complainant their cross-case was registered against the accused.” After hearing the learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. Learned Appellate Court while acquitting the respondents in the impugned order has held as under :- “13. The delay of 21 days in lodging the FIR or in making statement by the complainant party remains un-explained on the record. This aspect has not even been touched by learned trial court. Learned trial court has taken into consideration the injuries suffered by the complainant party, without discussing even a single line as to why the complainant party was hesitant in making the statement w.e.f. 9.7.06 to 28.7.06. It is nothing but concoction and afterthought. This fact should also not be lost sight of that the cross version had already been registered on the statement of Crl. Appeal No. 739-SB of 2010 (O&M) 3 accused party on 15.7.06. Even after coming to know about the recording of the FIR against them at the instance of the accused party, they did not make statement for another 14 days. 14. Now coming to the injuries suffered by the accused persons. It was incumbent upon the learned defence counsel to prove injuries on the persons of the accused either during cross examination of Dr. Shashi Garg PW2 or at the time of their defence. This is lapse on the part of learned defence counsel. Learned trial court has admitted in its judgment that the accused party had also received injuries. It has been discussed in para No.19 of the judgment that both the parties had inflicted injuries upon each other. It has also been mentioned that the injuries received by both the parties reveal that Subhash, Rajinder and Raghbir had received injuries more in number and more grievous. A cross version put forth by the learned defence counsel has been disbelieved by the learned trial court. It has been argued by learned counsel for the appellants that the prosecution is duty bound to explain injuries on the person of the accused. If the prosecution fails in its duty, it is fatal to the prosecution. Subhash one of the injured has been examined as PW1. Neither in examination-in-chief nor in cross-examination he has stated that he along with his companions had also inflicted injuries upon the accused in their self defence. Surjit another injured PW4 has stated in his examination-in-chief that the accused party had given Rs.30,000/- to Dr. Shashi Garg to that injuries received by the accused party may be made grievous and the injuries suffered Crl. Appeal No. 739-SB of 2010 (O&M) 4 by the complainant party may be made less grievous. Rajinder another injured PW has specifically stated in his cross- examination that the complainant party has not inflicted any injury upon the accused party. Raghbir PW10 has admitted in his cross- examination that in the altercation, the other party had also received injuries but he had not inflicted the same. It is pertinent to mention here that none of the injured even the complainant party has specifically stated that they had also inflicted injuries upon the accused party in exercise of their right of private defence, as the accused party had attacked the complainant party.” The reasons given by the Appellate Court while acquitting the respondents are good reasons. There was unexplained delay in lodging of the FIR. It was a case of version and cross-version. The cross version which was put up by the defendants was disbelieved by the trial Court. Learned trial Court after appreciating the evidence held that the appellants were not the aggressors and had not inflicted injuries on the complainant party at the first instance. Hence, no ground for interference by this Court is made out. Dismissed. (SABINA) December 17, 2010 JUDGE Anand