IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 223 of 2003 Date of Decision: 7th July, 2010 __________________________________________________________ Kuldeep Kumar and another. ….Petitioner. Versus State of Himachal Pradesh. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. Lovneesh Kanwar, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). Both the Court below have dealt with this case in a very slip shod manner. No attention has been paid to the facts which were required to be proved by the prosecution and established before criminality was attributed to the petitioners herein. 2. The petitioners were charged to stand trial for offences under Sections 452, 506 and 323 of the Indian Penal Code. The prosecution case is that on 22.2.1996 during the night time at around 8.30 P.M. Sh. Suresh Kumar was cooking meals along with one Kamar Singh in his house, when the petitioners tress-passed into the house in a 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 drunken state and assaulted him. The only provocation being that, a question was put by the assailants to the complainant that as to why he was clean shaved. Upon this, he was caught hold of from the neck by Kuldeep Kumar and other accused Pritam Singh hit him with a Tawa. The complainant states that for two days he remained in a state of depression and on 24.2.1996 a written report was sent to District Treasury Officer, Mandi, who reported the matter to the Police and First Information Report was lodged after a period of 38 days on 1.4.1996. The medical examination of the injured, was conducted on 23rd April, 1996. The learned courts below have focused their attention only to one fact that the statement of complainant can not be doubted and 38 days delay in lodging the First Information Report is inconsequential. For reaching to this conclusion, the Courts below have placed reliance on Mark-X, which is the photocopy of the purported complaint written by the injured/complainant to the District Treasury Officer, Mandi, i.e. of dated 24th February, 1996 and holds that the delay of 38 days has been reasonably explained. 3. The general principle of law is that every delay in lodging the First Information Report cannot be fatal, it is explained. Learned courts below hold that Ex. PW 6/B, which is the First Information Report itself incorporates and recites that the complainant had lodged the report at the first possible instance. 4. Even if, Mark X is to be admitted in evidence all that requires to be noticed is that it is also of dated 14.3.1996, which is again a month after the alleged incident. No body has cared to prove the original of Mark X on record including the follow up action by the District Treasury Officer. He was the best witness in the case and has been withheld. If 3 the original was submitted in the office of District Treasury, Mandi, which is the case set out by the prosecution, there was no reason for not producing it, but the only reason which I could infer from the record as to why it has not been produced, is that the diarizing stamp bears the date 14.3.1996. It is not the case of the prosecution that the original was lost or cannot otherwise be traced. 5. Adverting to the complaint lodged by the District Treasury Officer, Mandi to the police, Ex. Mark-Y (Ex. PW 6/A) is also of dated 21st March, 1996, which is a month after the incident. This delay is also unexplainable and fatal to the case of the prosecution. Ex. PW 5/A is the medical examination of the complainant carried out on 23.4.1996, i.e. more then two months after the alleged incident. This cannot be accepted as the true state of affairs. Even if the complainant did not want to lodge First Information report and wanted to have the intervention of the District Treasury Officer, there is no explanation as to why he did not take medical treatment on the very date of the assault or immediately thereafter. These facts are fundamental to the case of the prosecution, which have not been established. The District Treasury Officer is not a person, who is out of reach of the prosecution, or whose evidence can not be recorded. Taking these facts and circumstances into consideration, the revision petition is accepted and the judgment and sentence of both the courts below is quashed and set aside. I hold that there is no evidence on record to connect the petitioners with the purported assault on the complainant. 6. Before parting, I must place on record my anguish in the manner in which both the courts below have dealt with the case. July 07, 2010 (Dev Darshan Sud) (KRS) Judge