Crl. Rev. No. 255 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 255 of 2006 Date of Decision: 21.03.2011 Mukesh and another .... Petitioner Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE GURDEV SINGH Present : Mr. N.S. Shekhawat, Advocate for the petitioners Mr. J.S. Rattu, DAG Haryana 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? GURDEV SINGH, J. (ORAL) The petitioners – accused, Mukesh and Sunil, have preferred this revision against the judgment dated 28.1.2006 passed by Sessions Judge, Narnaul vide which he dismissed the appeal preferred by them against the judgment dated 13.12.2004 passed by JMIC Mahendergrh convicting them for the offences under Sections 323, 324/34 IPC and sentencing them as under:- Sr. No. Name of the accused U/S Sentence imposed Fine In default 1. Mukesh and Sunil Section 323 IPC read with Section 34 IPC Section 324 IPC read with Section 34 IPC To undergo rigorous imprisonment for one month To undergo rigorous imprisonment for six months To pay a fine of Rs. 500/- each To pay a fine of Rs. 1000/- each In case of default of payment of fine they shall undergo simple imprisonment for 7 days In case of default of payment of fine they shall further undergo simple imprisonment for one month. Crl. Rev. No. 255 of 2006 2 The prosecution story, in brief, is that on 16.9.1995 Rajender – injured/complainant - PW-2 had gone to his fields on his tractor for cultivating the same. In the meanwhile Sunil – accused came to that place with his tractor and told him that he had also beneficial interest in the criminal case got registered by him on 11.9.1995 under Section 427, 447/34 IPC. Accused after getting down from the tractor came towards him and gave a blow with his Kulhari (axe) on the index finger of his left hand. After that Mukesh - accused came to that place with a Jelly and gave a blow with the same on his left wrist and another blow was given by that accused on his elbow. He raised an alarm which attracted Mange Ram and Ram Avtar to the spot, who rescued him from the clutches of the accused. Sunil accused also tried to run over him under the tractor. He was removed to the hospital where he was medically examined by Dr. Lalit Mohan Sharma, who found two injuries on his person, which were detailed in MLR report Ex. PW-4/B. The Doctor sent his ruqa to the Police Station and on the receipt thereof Matadeen ASI came to that place and made an application Ex. PW-4/A for enquiring about the fitness of the injured to make his statement. The doctor declared him fit and thereafter his statement Ex. PW-2/A was recorded, in which he narrated the above said story. The ASI, after making his endorsement upon the same, sent that to the Police Station, on the basis of which formal FIR was recorded against the accused under Sections 323, 324 read with Section 34 IPC. The ASI went to the place of occurrence and after inspecting the same prepared the rough site plan. The injuries on the person of the injured were subject to the x-ray examination but no fracture was detected. Crl. Rev. No. 255 of 2006 3 In the course of investigation the accused were arrested and after completion thereof challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 323, 324 read with Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Mange Ram PW-1, Rajender Singh – complainant/injured PW-2, Dr. Narveer Singh PW-3 and Niranjan Lal retired inspector PW-5. After the evidence was closed by the prosecution, the accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence. They were called upon to enter on their defence but they did not produce any evidence in their defence. I have heard learned counsel for both the side. It has been submitted by counsel for the accused that conviction of the accused could not have been recorded on the contradictory evidence produced by the prosecution. Rajinder Singh -complainant totally contradicted himself by making the statement that the injury with the help of the Kulhari was caused to him by Sunil accused on his right hand, whereas in his statement before the police he stated that the said injury was caused on his left hand. According to him two injuries with the Jelly were caused by Mukesh - accused on his right wrist and elbow but during the medico legal examination no such injury was found on his elbow. The prosecution Crl. Rev. No. 255 of 2006 4 examined only Mange Ram PW-1 for corroborating the statement of complainant – Rajender but that witness has failed to corroborate the statement of the complainant and his presence at the spot appears to be highly improbable. Moreover this witness is inimical towards the accused as he contested the election against them. These contradictions assume importance in view of the fact that there is delay of about 24 hours, in lodging the FIR, which has remained unexplained. He prayed for acquittal of the accused. On the other hand it has been submitted by State counsel that delay in lodging FIR has been duly explained as immediately after the occurrence, the injured was admitted in the hospital and intimation was sent by doctor to the police station and on the receipt thereof Investigating Officer came to the hospital and recorded the statement of the injured. He also submitted that the contradictions pointed out by the counsel for the accused may be the result of slip of tongue or slip of pen while recording the statements in the Court. Mange Ram PW-1 can not be disbelieved merely on the ground that he had contested the election against the accused; otherwise the complainant and this witness have made consistent statements inter se and there is nothing on the record to be disbelieve them. The version given by Rajinder Singh – injured/complainant PW-2 in the Court runs counter to the version given by him before the police. He stated that Sunil – accused came on a tractor and immediately thereafter he gave a blow with the Kulhari from the back side on the index finger of the right hand whereas in his statement before the police he has stated that after stopping the tractor Sunil had told him that he had also a beneficial Crl. Rev. No. 255 of 2006 5 interest in the case got registered by him on 11.9.1995 under Sections 427 and 447/34 IPC and that the blow was given by that accused after getting down from the tractor. The complainant had also stated that Mukesh Kumar had given blow with the Jelly on his right wrist from the back side and the second blow was given on the elbow. No doubt he also stated so in his statement before the Court but when he was medically examined only one injury on the left arm was found and that injury can not be said to be on the elbow. Thus he not only contradicted himself while making statement in the Court but is further contradicted by the medical evidence also. No doubt prosecution case has been fully supported by Mange Ram PW-1 but he was only a chance witness. He has stated that his house is situated at a distance of about 2 Kms from the place of occurrence and he had witnessed the occurrence from a distance of 1½ Killa. The Investigating Officer has not marked the place from where this witness had witnessed the occurrence, in the rough site plan. It was admitted by this witness that he had contested the election against the accused and that can be said to be animus on his part to make false statement against the accused. All these contradictions are to be seen in view of the delay in lodging the FIR. As per the prosecution story this occurrence took place on 16.9.1995 at 9.00 a.m. and statement of the complainant was recorded on the same day at 5.10 p.m. whereas the FIR was registered on 17.9.1995 at 10.45 a.m. As disclosed by the counsel for the accused the hospital at Mohindergarh is situated immediately opposite to the police station Mohindergarh. Thus for sending the statement of the complainant, for recording the FIR, Crl. Rev. No. 255 of 2006 6 across the road, about 17 hours were taken. It appears that Investigating officer has intentionally avoided the witness box in order to avoid his cross examination in which he was bound to explain all these facts. It is also pertinent to note that as per the endorsement of the Judicial Magistrate, made on the FIR, special report was received by him on 20.9.1995 at 10.10 a.m. No explanation whatsoever has come forth from the side of the prosecution for this delay. The law always aims at the prompt lodging of the FIR. The same helps the investigation to avoid the criticism at the time of trial. The delay in lodging the FIR not only gets bereft of spontaneity but danger also creeps in of introducing coloured version, implicating the accused falsely and introducing made up witnesses. In case, the statement made by the complainant and the only eye witness are scrutinised in the light of the delay in lodging the FIR it becomes very much clear that it is not safe to place reliance thereon. The conviction of the accused could not have been recorded by the trial Court and the Appellate Court on the basis of their statements. The findings recorded to the contrary suffer from illegality and perversity and the same can not be upheld. In the result this revision is hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to them. Records of the trial Court be returned forthwith. (GURDEV SINGH) 21.03.2011 JUDGE reena