IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 58 of 1999 Date of decision: 19.5.2010 State of H.P. Appellant. Versus Dhian Chand and others 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: Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondents: Mr. Praneet Gupta, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 25.08.1998 delivered by the learned Judicial Magistrate, Barsar at Hamirpur in Case No.128- I/94 whereby he acquitted the accused of having committed offences punishable under Sections 326, 323 read with Section 34 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 6.6.1994 injured Jagdev Chand had gone alongwith his cousin Sanjay Kumar PW-2 to Deotsidh and then to Saloni. At about 9 o’clock at night PW-9 Bansi Ram, father of PW- 1, was called by Gian Chand PW-4 and one Suresh 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Kumar who has not been examined. They told him that his son Jagdev Chand is lying injured in the bushes. One of them Suresh Kumar in fact shouted that Jagdev Chand was drunk and was lying in the bushes. On hearing these calls PW-9 Bansi Ram gathered some neighbours including PW-10 Ram Pal and went to the spot. There they found the injured lying in the bushes. He was having an injury mark on the back of his head and it appears that somebody had beaten him and thrown him into the bushes. He was immediately taken to the CHC, Barsar and next morning the father lodged a report with the police which was entered in the Daily Diary Register at Sr. No.40 in which the father clearly stated that some unknown persons had beaten his son on the previous night. From Barsar the injured was shifted to the district hospital at Hamirpur from where he was referred to the PGI, Chandigarh. On 10th June, 1994 statement of the father was recorded at PGI Chandigarh under Section 154 Cr.P.C and on this basis F.I.R. Ext.PW-14/A was lodged. Thereafter, investigation was carried out and during the course of investigation the police allegedly came to the conclusion that it was the injured who had beaten the accused and accused Dhian Chand had given a Darat blow on the back of the injured. Based on this investigation Dhian 3 Chand was arrested and he is alleged to have made a disclosure statement under Section 27 of the Indian Evidence Act which led to the recovery of the Darat Ext.P-I. On the basis of this material, the accused were challaned for having committed the offences under Sections 326, 323 read with Section 34 IPC. After trial they have been acquitted. Hence the present appeal by the State. 3. As noted above, neither in the first information given to the police and recorded in Daily Diary nor in the F.I.R any of the accused were named. The prosecution story is that the injured PW-1 was unconscious from the time he suffered the injury till 18th June when he recovered and told his parents that it was the accused who had beaten him and that it was accused Dhian Chand who had given him blow with a Darat. Surprisingly, the statement of Jagdev Chand was not recorded by the police even then and his statement under Section 161 Cr.P.C was recorded on 6th July, 1994 Ext.DC more than one month after the incident. PW-1 while appearing in Court stated that when he was returning home alongwith his cousin Sanjay Kumar, they had to cross the boundary of hedges near the fields of the accused. When they removed the hedges the accused persons started 4 abusing them. On their raising objections to abusive language being used the accused beat them. Sanjay Kumar also gives a similar version while appearing in Court as PW-2. 4. The important question which arises is why Sanjay Kumar kept silent. He is the first cousin of the injured. According to the version of the injured as well as Sanjay Kumar both were present when the accused persons beat the injured. Sanjay Kumar states that he ran away and the accused persons threatened him that in case he disclosed the factum of the occurrence to any person he would also be dealt with in a similar manner. The version of this witness does not inspire confidence. It cannot be believed that the first cousin of the injured would keep silent for more than one month. He knew that his cousin PW-1 was admitted in the PGI Chandigarh. It would be expected that he would immediately tell his aunt and uncle i.e. the parents of the injured about the manner in which the occurrence has occurred. Even if he had run away immediately after the accused had gone away he would have come back to help his cousin. It would have been he who would have gone to the house of PW-1 and informed the parents of PW-1 about the incident. We have no doubt in our mind that PW-2 was not present 5 when the alleged occurrence took place and he is making a false statement in Court. 5. That brings us to the statement of PW-1 Jagdev Chand. The statement of an injured person if corroborated by medical evidence can by itself be used to convict the accused. However, there are some glaring lacunae in the prosecution case. PW-12 Dr. B.D.Dhiman was working as medical officer at CHC, Barsar. On 7.6.1994 injured Jagdev Chand was brought to him at about 8.30 p.m. According to the prosecution the injured was beaten up on 6.6.1994. This is the version of PW-1 and his father PW-9. According to PW- 9 he immediately took his son to the hospital but according to PW-12 Dr. B.D.Dhiman the injured was brought to him at 8.30 p.m on 7.6.1994. Therefore, the prosecution has failed to explain where the injured remained for almost 24 hours. The daily diary report (Ext.PW-13/A) was recorded on 7.6.1994 at about 7.30 a.m then why was the injured not taken to the hospital for 12 hours. Further according to PW-12 when the patient was brought to him he was semi conscious. We have seen the original record Ext.PW-12/A and it is apparent that originally the words were ‘patient conscious’ and ‘responding verbally’. Thereafter there is an alteration and the word ‘semi’ inserted before the 6 word ‘conscious’ and the word ‘not’ inserted before the word ‘responding’. In fact the doctor himself admitted that the patient was not unconscious in cross- examination. 6. PW-6 Dr. K.C.Chopra treated the injured at the district hospital, Hamirpur. He has proved the discharge card Ext.PW-6/A. This discharge card shows that the injured was admitted on 7.6.1994 and discharge at 12.30 p.m. on 8.6.1994. He was referred to PGI Chandigarh for C.T scan and management. Dr. K.C.Chopra has clearly stated that the injured was conscious at the relevant time and was in a position to talk to the doctor. Thus the statements of these two doctors leave no manner of doubt that injured Jagdev Chand was conscious when he was under treatment both at Barsar and at Hamirpur. The daily diary report had already been lodged. The question that arises is why the statement of Jagdev Chand was not recorded when he was conscious. 7. Though there is no cogent medical evidence to show that the patient was unconscious at PGI Chandigarh but the statements of the father and the injured and his mother PW-3 is that the patient remained unconscious. Even if we assume for the sake of argument that the patient became unconscious after 7 he was shifted from Hamirpur it was for the prosecution to prove as to when he regained consciousness. PW-8 Dr. B.S.Sharma, was additional professor in Department of Neoro-Surgery at PGI, Chandigarh. He has not stated that the injured was unconscious during the period he remained in hospital. According to him, as per the record he did not find that any person from the police had approached him in connection with the case. He has proved on record the medical record of the injured at PGI, Ext.PW-8/A to Ext.PW-8/C. In the discharge summary it has been recorded that the patient at the time of admission was found to be conscious though disoriented. There is nothing on record to show that an application was moved by the police to the authorities at PGI requesting them to certify whether the injured is or is not in a position to make a statement. This burden is always on the prosecution and if they fail to discharge this burden then an inference has to be drawn in favour of the accused. 8. Another glaring lacuna in this case is that the statement of Jagdev Chand was recorded on 6th July, 1994. There is no explanation worth the name as to why his statement was not recorded on 18th June when even according to the prosecution he had regained 8 consciousness. Another surprising co-incident is that on 6th July, itself the statement of Sanjay Kumar PW-2 was also recorded under Section 161 Cr.P.C. There is nothing to show why Sanjay Kumar who did not report the matter to the police or to the parents of Jagdev Chand, suddenly became brave enough to get his statement recorded after one month. In these circumstances, no reliance can be placed on the statement of the injured also. All the other independent witnesses including the witnesses to the recovery of Darat have turned hostile. 9. Therefore, the learned trial Court was fully justified in acquitting the accused. We find no error 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 May, 2010. ( Rajiv Sharma) ™ Judge.