HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 519 of 1999. Reserved on: 28.4.2008. Decided on: 19.5.2008. Shailender Singh ………Appellant. Versus State of H.P. ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.K.C. Rana, Senior Advocate with Mr.N.S. Chandel, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment of the court of learned Additional Sessions Judge (I), Kangra at Dharamshala, dated 12.11.1999, vide which the appellant was held guilty under Sections 324 and 326 IPC and was sentenced as under: Section 324 IPC: RI for one year and fine of Rs.1,000/-. In default of payment of fine to undergo SI for three months. Section 326 IPC: RI for three years and fine of Rs.2,000/-. In default of payment of fine to undergo SI for six months. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that on 20.6.1998 at about 7.45 p.m., PW-1 Suresh Kumar alongwith PW-2 Pawan Kumar and one Manoj Kumar were sitting on the road side at Village Maiti. The appellant/accused came in a bus, got down there and left for his house. The accused came back after five minutes and asked Manoj Kumar as to whether the last bus for Dharamshala had left or not to which Manoj Kumar pleaded his ignorance. In the meanwhile, the accused went back, came again there and struck a sword blow on the head of Suresh Kumar, who fell down and again another injury was struck on his head with the sword. Thereafter, the accused inflicted other injuries with sword on the left hand and left arm below shoulder on the person of PW-1 Suresh Kumar. Pawan Kumar tried to save him. In that process, he also suffered injuries on his back. The injured was taken to the hospital and on receipt of information from the Medical Officer, the police reached there and recorded the statement of PW- 1 Suresh Kumar who stated all the facts in his statement. On the basis of this statement, the case was registered and after investigation, the challan was filed before the learned trial Court and after committal, the case was assigned to the learned trial Court who tried the appellant under the above Sections leading to his conviction. Heard and gone through the record of the case. The submissions made by the learned counsel for the appellant were that it is in evidence that the appellant had come from behind and had hit the injured and, therefore, the injury could not have been on the front portion of the head of PW-1 Suresh Kumar. It was also submitted that no report to the Ilaqua Magistrate was sent though it was required and, therefore, the benefit of this non-sending of the report immediately to the Magistrate goes in favour of the - 3 - appellant. It was also submitted that the weapon of offence i.e. sword was not immediately recovered but was allegedly produced by the accused after 17 days which casts a doubt upon the prosecution story, in view of the delay in taking in possession the weapon of offence. It was also submitted that it has come up in evidence that some other persons were also present there who were not examined and, therefore, the statements of two witnesses examined by the prosecution as eye witnesses cannot be said to sufficient to prove the guilt of the appellant. It was further submitted that Manoj Kumar had also suffered injuries, but his medical certificate was not proved, which casts a doubt about the fact that he also suffered injuries. In light of the above submissions, it was submitted that in view of the infirmities and contradictions in the prosecution story, the guilt of the appellant cannot be said to have been established beyond any reasonable doubt and as such it was submitted that the appeal is liable to be accepted. On the other hand, the learned Law Officer had submitted that the mere fact that the report lodged with the police was not immediately sent to the Ilaqa Magistrate does not cause any prejudice to the accused. It was also submitted that the accused cannot take any benefit of defective investigation, if any. It was submitted that in regard to the injury as to how it was sustained on the front side, it was submitted that the appellant had come from the back side but not that he also inflicted injuries from the back side. It was submitted that the contradictions mentioned or the infirmities pointed out are minor in nature and they do not affect the merits of the case and as such the appeal is liable to be dismissed. - 4 - On appraisal of the record of the case, it is clear that the prosecution had examined nine witnesses in all and out of them, the statements of two eye witnesses examined, including the injured, can be said to be most material, apart from the statement of the Medical Officer. The first eye witness is PW-1 Suresh Kumar, the injured, who has narrated the facts, as mentioned above, as to how the accused came there, struck blows with sword on his head as well inflicted two other injuries on his left hand and left arm below the shoulder. PW-1 further stated that blood oozed out from the wounds and his T-shirt and vest were soiled with blood. In cross examination, he has admitted that at a distance of 7 metres from the path, there is a karyana shop and by the side of the karyana shop, there is a bus stop where 5-7 persons were present at that time who were waiting for the bus. This admission by the injured does not lead to the inference that at the time the occurrence took place, these persons were present nearby or had witnessed the occurrence. The injured was shifted immediately to the hospital after he sustained the injuries and there was no occasion for him to ascertain the names of the passengers who may be waiting at the bus stand at some distance from the scene of occurrence and who may have left the spot after boarding the bus after some time. Therefore, this admission does not prove the presence of 5-7 persons having witnessed the occurrence, as was argued by the learned counsel for the appellant. PW-1 Suresh Kumar, in further cross examination, has admitted that his elder brother Kishori Lal has expired and they were suspecting that Shamsher Singh, who is the father of the appellant, and his family members may have killed him. This may be the reason for the appellant to have inflicted the injuries - 5 - on the person of the injured. Another suggestion was made that the accused’s father, being a Ward Member, had got the matter compromised in between his aunt and him, but he denied this suggestion. The mere fact that the appellant’s father was a Panch and had effected the compromise does not make the injured inimical with the appellant’s father. The mere fact that he admitted that both the witnesses did not intervene does not lead to the inference that their statements cannot be relied upon. PW-1 has given the reason for their non- intervention that they were under fear. It cannot be accepted that the witnesses must have intervened to save PW-1 Suresh Kumar when the appellant was armed with sword and was giving blows on the person of the injured PW-1 Suresh Kumar and it is quite natural for them to save themselves firstly, but their behaviour does not lead to the inference that they were not present there or their testimony cannot be relied upon. PW-2 Pawan Kumar is the second eye witness, who was with the injured and has materially corroborated the statement of PW-1 Suresh Kumar. He has narrated the sequence of events, as stated by PW-1 Suresh Kumar, as well as about the manner in which the injuries were inflicted and also stated about his own presence and that of one Manoj Kumar at that time. He denied the suggestion in cross examination that PW-1 Suresh Kumar and his family members were suspecting the accused’s family behind the death of the brother of PW-1 Suresh Kumar. He also stated that there were some 10-15 persons but he was not further cross examined as to where they were present or as to whether they had seen the occurrence or not. There were not specific suggestions to him as to why he would depose falsely as against the appellant except the suggestion that he being the friend of the complainant was deposing - 6 - falsely. The mere fact that he may be the friend of the complainant is not sufficient to hold that his statement cannot be relied upon, particularly, when no enmity was proved in between the appellant and him and his statement was not shattered in cross examination to show that he was not present at the time of occurrence. The third eye witness PW Manoj Kumar was not examined by the prosecution being of same sequence. It is not the number of witnesses that matters but the quality of evidence and as such the statements of PW-1 Suresh Kumar and PW-2 Pawan Kumar have to be appreciated as to whether they prove the case of the prosecution or not. Apart from the above, the prosecution had examined PW-4 R.K. Mahajan, Medical Officer, who stated that he examined the injured PW-1 Suresh Kumar on that day at 8.50 p.m. He admitted the injured in the hospital, informed the police vide letter Ext.PW-4/A, who came to the hospital, found the complainant fit to make statement and he accorded sanction Ext.PW-4/B for recording of the statement. He found four injuries on the person of the injured as under: “1. An elliptical incised wound on the right side of the forehead was seen. Fresh bleeding was present. Side of the wound was 4x2 cm, scalp deep. 2. An incised wound was also present in the middle of the head scalp deep, size 3 cm x 1 cm, fresh bleeding present. 3. An incised elliptical wound on the left side of the wrist joint covering the thenar ininance. Musel was clearly visible, fresh bleeding was present, size was 6x4 cms. 4. An incised wound also present on the right upper arm size 6x1 CM, bleeding was present.” - 7 - He further proved the X-ray report skygrams and has stated that he noted a fracture and opined that the injuries No.1 to 3 were grievous, while injury No.4 was simple in nature. The learned counsel for the appellant wanted to take benefit from the statement of this witness in cross examination wherein he has stated that the injured, at the time of admission, had informed him that he was attacked with knife. A perusal of the MLC Ext.PW-4/G issued by this witness shows that at the time of recording of the history, he had mentioned as under: “H/O attack by a sharp weapon”. This clearly shows that the Medical Officer never recorded at the time of the examination of the injured as to the sharp weapon in question with which he was attacked. The Medical Officer mentioned the word only ‘sharp weapon’ when he examined the injured on 20.6.1998. I am unable to agree as to how the Medical Officer after more than one year and three months, when his statement was recorded on 18.9.1999, could state that this weapon of offence told to him was knife. The Medical Officer examines number of injured persons during a day and may be preparing number of MLCs also in a particular month. The Medical Officer should have gone by the record and not have stated the fact which was not recorded by him, which makes this part of his statement unreliable. I hope and trust that the Medical Officer should have taken care not to state the fact which was not mentioned in the MLC. Therefore, no benefit can be taken by the appellant of this part of the statement made by the Medical Officer. The statement of the Medical Officer in regard to the injuries clearly corroborates the statements of the injured and other eye witness, as discussed - 8 - above. No benefit can be taken by the appellant, as submitted by the learned counsel for the appellant, that when the accused came from behind, how the injury was sustained on the front since injury No.3 was on the middle of the head which could have been easily caused from behind. In regard to the injury on the front side, PW-1 Suresh Kumar has clearly stated that thereafter again an injury was inflicted on his head, which was found on right side of forehead and as such neither there is any infirmity nor there is any contradiction and the statement of the injured in regard to the parts of the body where the injuries were inflicted stands fully corroborated from the statement of the Medical Officer. Coming to the other plea raised that the police has not proved the MLC of Pawan Kumar, who had also sustained some injuries when he tried to save the injured PW-1 Suresh Kumar, PW-2 Pawan Kumar has clearly stated that he had suffered minor injury on his back and, therefore, in view of the fact that the minor injury was sustained, he had not undergone the medical examination and no MLC of him was proved. The accused is being tried for the injury inflicted on the person of PW-1 Suresh Kumar and not on the person of PW-2 Manoj Kumar who had suffered minor injuries only and non-production of his MLC cannot be said to be affecting the merits of the statements made by PW-2 Pawan Kumar. Apart from the above, the prosecution had also examined PW-3 Mali Ram, who is a witness to the taking in possession of the sword produced by the accused but he had turned hostile. The fact that the Medical Officer had examined the injured within about one hour and gave his statement also and proved the MLC in which time was given and, therefore, there was no opportunity for the complainant to falsely introduce the names of the witnesses - 9 - since he was taken to the hospital where the police officer came and recorded his statement. The investigating officer PW-8 Kailash Nath had admitted that he had not sent the special report of this case to the Magistrate since this case was registered under Section 307 IPC. However, a perusal of the FIR shows that the copy of FIR was sent to the Chief Judicial Magistrate and it was received by him on 22.6.1998 at 10.05 a.m. The investigating officer has stated that he did not send the special report to the Magistrate at his residence since it was a case under Section 307 IPC. The special reports, as per the practice, are usually being sent in murder cases and other serious offences and in case the investigating officer had not deemed it necessary to send the report in a case under Section 307 IPC, he should have been confronted with the relevant rules to show that it was mandatory for him to have sent the special report even in an offence under Section 307 IPC. However, the report was sent to the Magistrate on a working day and had been received by him after one day when it was sent to him and the timings and date have been mentioned as per the noting on the FIR. The mere fact that the investigating officer, in the facts of the case, did not deem it necessary to send the special report to the Ilaqa Magistrate is not sufficient to hold that the facts cannot be relied upon since the statement of the Medical Officer and the MLC proved by him clearly proves that on the same day, the injured was examined. In regard to the defective investigation or its effect, the learned Law Officer had relied upon the following decisions. The decision in Dhanaj Singh Alias Shera and others v. State of Punjab, (2004) 3 Supreme Court Cases 654, shows that the defective - 10 - investigation is not fatal to the prosecution where the ocular testimony is found credible and cogent. Court has to be circumspect while evaluating the evidence in a case of such type. Thus, accused cannot be acquitted solely on account of defect in investigation. The decision in State of U.P. v. Gokaran and others, AIR 1985 Supreme Court 131, was relied upon wherein, in regard to the provisions of Section 157 Cr.P.C., it was observed as under: “It is not that as if every delay in sending a delayed special report to the District Magistrate under S.157 Cr.P.C., would necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or antedated or that the investigation is not fair and forthright.” The above decisions clearly answer the plea raised by the learned counsel for the appellant, which is devoid of any force and I accordingly repel the same. From the above discussion of the evidence, it is very much clear that the statement of the injured PW-1 Suresh Kumar stands duly corroborated from the statement of PW-2 Pawan Kumar, an eye witness, and these statements further stand corroborated by the statement of PW-4 Medical Officer R.K. Mahajan, who examined the injured and gave his opinion about the injuries. There are no material contradictions in their statements. These further stand corroborated from the recovery of the sword at the instance of the appellant and the mere fact that the sword was not recovered at the earliest is not sufficient to hold that it affects the merits of the case. No suggestions were put up to the investigating officer in regard to the delay in recovering the sword or the reasons for the same. The prosecution has also proved that the T-shirt and vest Ext.P-1 and - 11 - Ext.P-2 of the injured were also having blood stains and as per the opinion of the expert, the blood on these clothes was human blood. This also corroborates the prosecution story. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court holding the appellant guilty under Sections 326 and 324 IPC do not suffer from any infirmity and are not liable to the interfered with and as such those findings holding the appellant guilty under these Sections are upheld. No prayer was made, in the alternative, for reducing the sentence imposed upon the appellant. The offence under Section 326 IPC is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years. Thus, sufficient sentence has been provided under this Section, which can be imposed by the court and the learned trial Court has already taken pittance upon the appellant and sentenced him under Section 326 IPC for rigorous imprisonment for 3 years only and for 1 year under Section 324 IPC and the sentence imposed by the learned trial Court calls for no interference. Therefore, there is no merit in the appeal filed by the appellant which is dismissed accordingly. The appellant shall surrender to the learned trial Court who shall take steps to send him to custody and shall intimate this Court also in regard to this fact. The appeal filed by the appellant stands disposed of accordingly. May 19, 2008 (V.K. Ahuja), (TILAK) Judge.