Crl. Revision No. 1455 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1455 of 2005 Date of decision: February 14, 2011 Gurcharan Singh and others ...Petitioners Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. JS Brar, Advocate, for the petitioners. Ms.Gagan Mohni, AAG, Punjab. GURDEV SINGH, J. (Oral) Gurcharan Singh, Jagsir Singh and Mukhtiar Singh were charged for the offences under Sections 323, 324 and 326 read with Section 34 IPC for having voluntarily caused hurt and grievous hurt with the help of instruments of cutting to Bikkar Singh complainant (PW-1), in furtherance of their common intention. On the basis of the evidence produced by the prosecution, in the form of ocular evidence, consisting of the statement of the said complainant, Resham Singh (PW-2); medical evidence, furnished by Dr. H.S. Gill (PW-3) and the corroborative evidence furnished by Surjit Singh ASI (PW-4) Investigating Officer, the Judicial Magistrate Ist Class, Moga, convicted the accused for the aforesaid offences and sentenced them as under:- Crl. Revision No. 1455 of 2005 2 1 Jagsir Singh (i) to undergo rigorous imprisonment for a period of two years under section 326 IPC and to pay fine of ` 500/-, in default thereof to further undergo imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of six months under section 324/34 IPC; and (iii) to undergo rigorous imprisonment for a period of three months under section 323/34 IPC. 2 Gurcharan Singh (i) to undergo rigorous imprisonment for a period of two years under section 326/34 IPC and to pay fine of ` 500/-, in default thereof to further undergo imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of six months under section 324 IPC; and (iii) to undergo rigorous imprisonment for a period of three months under section 323/34 IPC. 3 Mukhtiar Singh (i) to undergo rigorous imprisonment for a period of two years under section 326/34 IPC and to pay fine of ` 500/-, in default thereof to further undergo imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of six months under section 324/34 IPC; and (iii) to undergo rigorous imprisonment for a period of three months under section 323/34 IPC. Feeling aggrieved against that conviction and sentence, they preferred an appeal, which was dismissed by the Additional Sessions Judge, Moga, vide judgment dated 13.7.2005. Now they have preferred the present revision petition against that conviction and sentence. The accused were nursing a grudge against Bikkar Singh- complainant on account of irrigation of his land with the help of canal water. On 3.7.1999 at about 10 p.m. he was going to his fields on a bicycle and was being followed by his brother Resham Singh, on the other bicycle. When they reached near the fields of Kaka Ram Pandit, the accused met them. At that time Gurcharan Singh was armed with a gandasa, Jagsir Singh Crl. Revision No. 1455 of 2005 3 armed with a dah and Malkiat Singh was armed with a kassauli. Jangir Singh remarked that they were just waiting for him and when he replied that he has not caused any loss to them, Gurcharan Singh gave blow with his gandasa from the sharp side on his head, as a result of which, he fell down. While he was lying on the ground Jagsir Singh gave a dah blow on the finger of his left hand and Mukhtiar Singh gave a blow with his kassauli on his left arm. The complainant raised an alarm and his brother challenged the accused, upon which they ran away from the spot with their respective weapons. From the spot he was lifted by his brother and was taken to his house and the occurrence was disclosed by his brother to their third brother Makhan Singh. Thereafter, he was removed to Civil Hospital Baghapurana and was admitted at that place. He was medically examined by Dr. H.S. Gill, who found five injuries on his person, which were detailed in the medico legal report Ex. PW3/A. Copy of the MLR was sent to the Police Station and on receipt thereof, Surjit Singh ASI (PW-4) came to the hospital and made an application Ex. PB to inquire about the fitness of the complainant to make statement, who was declared fit by the doctor. Thereafter, ASI recorded his statement Ex. PA. After recording the police proceedings Ex. PA/1, he sent the same to the police station, on the basis of which formal FIR Ex. PC was registered against the accused under Sections 323 and 324 read with Section 34 IPC. He went to the place of occurrence and after inspecting the same prepared the rough site plan Ex. PD with correct marginal notes. The injuries on the person of the complainant were subjected to radiological examination. On the basis of the x-ray report Ex. PW3/C and the skigrams Exs. PW3/E to Ex. PW3/G, Dr. H.S. Gill declared Crl. Revision No. 1455 of 2005 4 injury No.3 on the person of the complainant as grievous, vide his opinion Ex. PW3/J. After that opinion, offence under Section 326 IPC was added against the accused. On 11.7.1999, Gurcharan Singh and Jagsir Singh were arrested by the ASI. On interrogation, Gurcharan Singh made a disclosure statement Ex. PE that he has kept concealed the gandasa in the hay stack lying in his house about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, he got recovered the gandasa from the said place. The ASI prepared a rough sketch Ex. PG of that gandasa and took the same into possession, vide memo recovery Ex. PH. Similarly, Jagsir Singh suffered a disclosure statement Ex. PF that he had kept concealed the dah on the back side of iron box lying in his residence, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, he got recovered the dah. The ASI prepared rough sketch Ex. PJ of that dah and took the same into possession, vide recovery memo Ex. PK. On 20.7.1999, Mukhtiar Sigh accused was arrested. On interrogation, he disclosed that he had kept concealed one kassauli in the heap of rice straw lying on the back side of his house about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement Ex. PL, he got recovered the kasauli from the said place. The ASI prepared rough sketch Ex. PM thereof and took that into possession, vide recovery memo Ex. PN. All these weapons were deposited by the ASI with MHC. After completion of the investigation, challan was put in before the Judicial Magistrate Ist Class, Moga. The JMIC charged the accused for the aforesaid offences, to which Crl. Revision No. 1455 of 2005 5 they pleaded not guilty and claimed trial. I have heard learned counsel for both the sides. Learned counsel for the accused, while assailing the finding of conviction and sentence so recorded by the trial court and upheld by the appellate court, argued that there was a delay of 17 hours in lodging of the FIR which becomes very material in the facts of this case as the complainant/injured was conscious when he reached the hospital and was in a position to lodge the report. Even if the same could not have been done by the complainant, at least his brother Resham Singh could have lodged the report as according to him he was present at the time of the occurrence and witnessed the same with his own eyes. The presence of this Resham Singh at the spot becomes doubtful, in view of the contradictory statement made by him about the causing of the injuries on the arm of the complainant. The prosecution relied upon the recovery of weapons from the possession of the accused and a finding to that effect was recorded by the trial court. Such a finding could not have been recorded as no independent witness was associated at the time of recovery, nor the statement of the Investigating Officer was corroborated by any other witness. The Investigating Agency could have collected the corroborative evidence, but no such corroborative evidence was collected by it. No blood stained earth was collected from the place of occurrence, nor blood stained clothes/wearing apparels of the complainant were taken into possession, though, according to the doctor, who examined the complainant, he was bleeding profusely. In view of that delay and in the absence of corroborative evidence, no reliance can be placed on the statement of the complainant and the only eye witness Crl. Revision No. 1455 of 2005 6 examined by the prosecution. The conviction of the accused could not have been recorded on the basis of such like evidence. He also argued that on the basis of the evidence produced by the prosecution, it cannot be held that the accused committed offence under Section 326 IPC also. The radiologist, who conducted the x-ray examination of the complainant/injured, was never examined and in the absence of his examination, it cannot be held that the injury on the person of the complainant was found grievous. He also submitted that the accused have been standing the trial for a number of years and keeping in view this protracted trial, in case the conviction is to be maintained, the sentence of imprisonment so imposed upon them be reduced. On the other hand, it has been submitted by the learned State counsel that the delay in lodging of the FIR satisfactorily stands explained. A copy of the medico legal report was sent to the police station and immediately on receipt thereof, the Investigating Officer came to the hospital and recorded the statement of the complainant. Even if there is some delay in lodging of the FIR that cannot be made a ground for discarding the trustworthy statements made by the complainant and the other witnesses. That evidence cannot be ignored merely on account of non-production of corroborative evidence in the form of collection of blood stained earth and taking into possession the blood stained clothes of the complainant. She also submitted that keeping in view the nature and gravity of the offence, there is no ground for reducing the sentence of imprisonment so imposed upon the accused. It is now well settled that delay in lodging of the FIR is not Crl. Revision No. 1455 of 2005 7 fatal. Even prompt lodging of the FIR is not a guarantee of the truthfulness of the version being put forward by the prosecution. If any explanation is offered for the delay, the court is to see if the same is supported by any evidence or not. Moreover, the delay is only a circumstance to put the court on guard for scrutinizing the evidence of the prosecution with much more care and caution so as to rule out the possibility of any false implication and introduction of the made up witnesses. Once, after a thorough scrutiny, the court comes to the conclusion there there is no false implication or introduction of made up witnesses, this delay becomes insignificant. The prosecution case in the present case was unfolded by Bikkar Singh complainant (PW-1). He deposed about the facts which constitute the prosecution version. His statement was fully corroborated by Resham Singh (PW-2). No doubt, he is related to him as his real brother but that relationship cannot be made a ground for doubting his presence at the spot or for not placing reliance on his testimony. There might be some contradiction in his statement and in the statement of the complainant regarding causing of one of the injuries by Jagsir Singh but that alone, in the absence of any other contradiction or discrepancy, is not sufficient for doubting his presence at the spot. The ocular evidence so produced by the prosecution stands fully corroborated by the medical evidence furnished by the statement of Dr. H.S. Gill (PW-3), who conducted the medical examination of the complainant/injured. In view of this cogent and convincing evidence produced by the prosecution, the delay, if any, in lodging of the FIR loses its significance. Crl. Revision No. 1455 of 2005 8 It is an admitted fact that the prosecution has not produced any evidence regarding collection of the blood stained earth from the spot or taking into possession the blood stained clothes/wearing apparels of the complainant, though, according to the doctor witness, these were incised wounds, which were found on his person. At the most that would have been a corroborative evidence and no adverse inference can be drawn against the prosecution for not producing that corroborative evidence, in view of the trustworthy evidence produced by it. It is a fact that the prosecution relied only on the solitary statement of Surjit Singh ASI (PW-4), so far as the recovery of weapons of offence from the possession of the accused in pursuance of their disclosure statements is concerned. There is no rule of law that an independent witness must be associated before effecting such recovery. At the same time, it is cardinal principle of law that before placing reliance on the statement of the police official regarding the recovery, the same must be corroborated by some other evidence. Gurmeet Singh Constable was present when the alleged recoveries were said to have been effected. That constable was not examined by the prosecution for corroborating the statement of the Investigating Officer. In the absence of any corroborative evidence, this court is not inclined to place reliance on the solitary statement of the Investigating Officer so far as the recovery of weapons from the possession of the accused is concerned. But that was also a corroborative piece of evidence and the merits of the case are not likely to be affected in case that evidence is ignored. It was stated by Dr. H.S. Gill (PW-3) that he got conducted the Crl. Revision No. 1455 of 2005 9 x-ray of the injured and thereafter declared injury No.3 as grievous as there was fracture on middle finger of the left hand. He proved on record his report Ex. PW3/C as well as the report of the radiologist Ex. PW3/D and the skigrams Ex. PW3/E to PW3/G. During his cross-examination he has stated that he is not a radiologist and the x-ray of the injured was conducted by Nirmal Singh radiographer, who is also not a radiologist. He further stated that x-ray report was prepared by Dr. G.S. Sharma, who was appointed by the SMO concerned. It was never suggested to him that the report so given by Dr. G.S. Sharma did not relate to the complainant. The report of the doctor was admitted without any objection from the side of the accused. It was on the basis of that report that one of the injuries on the person of the complainant was declared as grievous. Keeping in view the statement of this doctor witness, it cannot be held that on account of non-examination of the radiologist, the injury on the person of the complainant could not have been declared as grievous. The position would have been different if the report of the radiologist had been challenged by the accused during the cross-examination of this doctor witness or objection would have been taken by the accused at the time when the same was exhibited. From my above discussion, I conclude that there is no ground for setting aside the well reasoned finding of conviction recorded by the trial court and upheld by the appellate court. For the offence under Section 326 IPC, the accused were sentenced to undergo imprisonment for a period of two years. The injury which falls under the mischief of grievous hurt was found on the finger which is not a vital part of the body. The accused are standing their trial Crl. Revision No. 1455 of 2005 10 since the year 1999. The interest of justice would be served in case the sentence of imprisonment so imposed upon them under Section 326 IPC is reduced. Accordingly, the sentence of imprisonment of two years so imposed upon them is reduced to one year. With the said modification, this revision is hereby dismissed. Accused be taken into custody to serve the remaining sentence. Records of the trial court be returned forthwith. February 14, 2011 (GURDEV SINGH ) prem JUDGE