IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.691 of 2002. Date of Decision: October 11,2011. _______________________________________________ State of H.P. ….Appellant. Versus. Sushil Kumar. ….Respondent. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the appellant: :Mr.R.K.Sharma, Senior Additional Advocate General with Rajinder Dogra, Additional Advocate General. For Respondent. : Mr.S.D.Vasudeva, Advocate. Dev Darshan Sud, J(Oral). The State challenges the judgment of the learned Additional Sessions Judge-II, Kangra at Dharamshala, acquitting the respondent charged with offences under Section 307 of the Indian Penal Code (hereinafter referred to as the ‘IPC’). 2. The facts necessary for adjudication of this appeal are that respondent Sushil Kumar and PW4 Suman Kumar injured are the residents of the same village. The complainant was posted as driver in the Kangra Central Co-operative Bank, Dharamshala and used to return from his duty in the Whether reporters of the Local papers are allowed to see the judgment.yes. 2 late hours of the evening. On 6.3.1998, at around 8.15 p.m. when he was proceeding to his house, the accused was standing near the water tap near the house of the complainant. Both of them greeted each other, shook hands and exchanged pleasantries. He then states that when he turned back towards the accused, he was assaulted viciously i.e. he was pushed and the respondent picked up stones lying nearby and hit him on his jaws and his face. He says that accused caught hold of his jersey/woolen sweater and he immediately raised an alarm screening ‘Bachao Bachao’ at which the accused fled from the scene of occurrence. He was beaten up with kicks, fists and stones. On hearing his cries, his mother Bhatoli Devi, his wife Meenu Kumari (PW6) and his brother Pathanoo Ram (PW5) rushed to the spot where he was lying. They asked him about the cause of the injuries sustained by him when he disclosed that the accused had hit him with stones and kicked and punched him. Thereafter he became unconscious and regained consciousness only in Hospital on 10.3.1998. He was confronted with the statement mark ‘Y’ recorded under Section 161 Cr.P.C. where some of the facts which he stated in his examination-in-chief have not been recorded. 3. PW5 Pathanu Ram corroborates the complainant and states that on the relevant day and time, he heard cries of the complainant “Mardiya Mardiya”. He immediately rushed out and saw the complainant lying on the ground and saw blood oozing out from his mouth and head. Before his arrival, 3 Hans Raj and PW9 Inder Singh had already reached there and were standing there. Thereafter his mother Bhatoli Devi also reached the spot. He inquired from his brother (complainant) as to what had happened and he disclosed that Sushil Kumar accused had beaten him with stones, punched and kicked him. He become unconscious and he was rushed to the hospital where the police recorded his statement Ext.PW5/A. He admits that he had accompanied Suman Kumar (PW4 ) to the hospital when he was admitted and that he had told PW1 Dr.B.B.Katoch how the injured Suman Kumar sustained injuries. His mother Bhatoli Devi and Suman’s wife PW6 Meenu Kumari were also present with him at that time. He says that prior to this he had also gone to the Police Station and his statement was recorded and that the place where he found complainant Suman Kumar lying is a common village thoroughfare. 4. PW6 Meenu Kumari states in her evidence that at around 8.30 p.m, on 6.3.1998 she heard her husband crying “Mardiya Mardiya” and when she rushed to the spot, her mother-in-law, PW5 Pathanu Ram and three other persons had also reached there. She saw her husband lying on the ground and he was bleeding from his right eye and mouth. PW5 Pathanu Ram had asked complainant Suman Kumar as to what had happened whereupon he disclosed that Sushil Kumar had assaulted him. Thereafter he became unconscious and he was removed to the Civil Hospital at Kangra. In her cross-examination, she admits that she had told to the doctor 4 that how her husband sustained injuries and who had caused them. PW9 Inder Singh also states that he cannot remember the date and time but at around 8.15 p.m. he heard cries and he rushed out from his house and saw PW5 Pathanu Ram, Hans Raj, PW6 Meenu Kumari and Bhatoli Devi present there. The complainant was lying in an injured state. He says that in his presence the injured did not state anything at which he was declared hostile. He was cross-examined by the public prosecutor where he denied certain portions of his statement under Section 161 Cr.P.C. having been made by him. 5. PW1 Dr.B.B.Katoch, Medical Officer, Civil Hospital, Kangra examined PW4 Suman Kumar and found the following injuries: “(i) Alleged history of the injured being beaten. Face soiled with blood. Patient un-conscious and not responding to deep pressurer stimuli. Pulse rate is below volume 88 per minutes. Blood pressure 90 mm systolic; Respiratory rate 18 per minutes. History of vomiting present which is blood stained. No history of fits. Right eye is swollen and ecchymosed. Bleeding from nostrils. No active bleeding. Bilateral pupils are equal and reacting to light. There is no history of vomiting/fits. The patient was advised for the X-ray of skull. (ii) Chest, CVS, CNS, and PIA are normal. (iii) Chest compression and pelvic compression not painful. Maxillofacial soft tissue injuries tenderness mandible. Advised X-ray mandible and P.N.S Long bones upper limbs and lower limb are normal. Patient admitted for resuscitation and management. Thereafter the patient was referred to Zonal Hospital Dharamshala for further management and opinion. The injuries are dangerous to life and the probable duration of the injuries less than six hours. Injury caused with a blunt 5 weapon. After the receipt of the report of X-ray, the injuries were opined as grievous.” 6. He states in his examination-in-chief that: “the injuries in the present case cannot be possible with any of three stones shown to me in the court today. Had this stone being hit on the face than there would have blood stain on the stone which are absent on the stone shown to me today. However, some times it is possible that there may not be any stain of blood on the stone because it takes time for the blood to come out of the injury and by that time the stone will fall down.” 7. In his cross-examination he states that the name and identity and other particulars which he has recorded in Ext.PW1/A have been disclosed to him by the persons who accompanied the injured. The history of the case was also disclosed by these persons. But the names and particulars etc. of these persons who accompanied the injured have not been mentioned in the medico legal certificate. He then states that if somebody is hit on his face by stones, it would leave some bruise and abrasion on the skin and in this case there was no external injuries. 8. We are not turning to the other evidence as what we find from the cross examination of PW13, S.I. Duni Chand, who was the Investigating Officer is that the copy of the F.I.R. Ext.PW10/A was received by the Illaqua magistrate on 9.3.1998 at 10.30 A.M. He could not state as to what was the cause of delay. On the evidence on record, the learned trial Court holds that the name of the assailant has not been mentioned in the medical report Ext. PW1/A and coupled with the facts that there has been un-explained delay in sending 6 the report to the illaqua magistrate, the prosecution version of the incident cannot be accepted. The court also considered the statement Ext.DX where certain contradictions have been brought on the record of the case. 9. We have heard learned Senior Additional Advocate General and gone through the record of the case. We are in concord with the conclusion arrived at by the learned trial Court. We find that there is no plausible explanation as to why the name of the assailant was not disclosed immediately to the doctor when the medical history of the patient was being taken. We also find that there is no reason to doubt the statement of PW1 Dr.B.B.Katoch, who is categoric in his statement and establishes three facts (a) that the stones which were produced in the Court could not have caused the injuries (b) that if the injured had been struck with stones, there would be some external injuries on the skin where there was none and (c) that the entire history of the assault was disclosed to him by the persons accompanying him who were PW5 Pathanoo and PW6 Meenu Kumari which was recorded in Ext.PW1/A but the name of the accused was not disclosed. 10. The learned trial Court relies upon the decision of the Supreme Court in Devinder Vs. State of Haryana, AIR 1997 S.C. 454. The Supreme Court holds: 7. Having carefully gone through the entire materials on record, we are unable to sustain the impugned judgment. Though apparently there is no reason to disbelieve the two eye witnesses, there are certain underlying circumstances which 7 persuade us to give the benefit of reasonable doubt to the appellant. According to the prosecution case and as testified by Jagdish immediately after the assault Ramphal was taken to the hospital by him (Jagdish) and Umesh (not examined), who were present at the time of the assault. Dr. Jain testified that at the time of admission Ramphal was fully conscious and his blood pressure and pulse were normal. From the medico legal report (Ex. PS) that the doctor sent to the police after examining Ramphal we find that apart from his name, the father's name of Ramphal, his address, his occupation and an account as to how the injuries were caused find place. Obviously all these particulars had been furnished by Ramphal, and/or Jagdish and Umesh, who had accompanied him. In that context it was expected, if really the appellant was the assailant, that his name would be disclosed by all or any of them while furnishing the cause of the injuries. It can therefore, be legitimately inferred that at the earliest available opportunity the name of the appellant was not disclosed. 8. It was, however, contended by Mr. Malhotra appearing on behalf of the respondent that since the F.I.R.. was lodged by Jagdish with promptitude and therein the name of the appellant as the assailant had been mentioned, non- disclosures of his name earlier before the doctor, who was under no statutory obligation to record the name of the assailant, was of no moment. If the F.I.R.. was recorded at 2.40 P.M. (on July 26, 1986) as indicated therein we might have persuaded ourselves to accept the contention of Mr. Malhotra but we find, surprisingly enough, that no special report in respect of the registration of the case was sent to the Magistrate on that day: and, indeed, as the evidence on record unmistakably shows that it was forwarded to the Magistrate only after the case was converted to one under Section 302 IPC consequent upon the death of Ramphal on July 27, 1986, and received in his office at 10 P.M. This glaring circumstance prompts us to hold that the F.I.R.. did not see the light of the day the till the death of Ramphal and the 8 version of the prosecution that the F.I.R. was recorded on July 26, 1986 is not true.” (P.456). 11. As we find no perversity either in the appreciation of the evidence or in the conclusion arrived at by the learned trial Court, the appeal is accordingly dismissed. Bail bonds furnished by the respondent are discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. October 11, 2011(R)