1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 91-SBA of 2002 Date of Decision: 1.7.2010. *** State of Punjab .. Appellant VS. Mohinder Singh .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. B.S. Sra, Addl. A.G. Punjab. Mr. T.S. Sangha, Sr. Advocate with Mr. J.S. Lali, Advocate for the respondent. *** ARVIND KUMAR, J. The present appeal by leave has been preferred by the State against the judgment dated 18.4.2001 passed by learned Addl. Sessions Judge, Patiala by dint of which the appeal of accused-respondent has been accepted and he has been acquitted of the charges under Sections 323, 325 and 452 IPC. Let us first have the facts of the case. On 20.2.1997 on receipt of an information regarding admission of injured Chand Singh, ASI Bachan Singh along with other police officials went to Rajindera Hospital, Patiala and recorded the statement of Chand Singh wherein the injured narrated that on the same day when he was present in his house, Mohinder Singh Sarpanch peeped into his house, to which he objected, upon which Mohinder Singh entered into his house and assaulted him with a stick and when his wife Gurcharan Kaur tried to intervene, she was also given beatings by Mohinder Singh. Since some of the injuries on the person of injured were simple in nature and for rest, the report of the X-ray was sought, the investigating agency opted only to enter DDR No.29 dated 20.2.1997 and after x-ray 2 report, a fracture was detected on the left leg of Chand Singh, consequently case FIR No.7 dated 3.3.1997 was registered against the accused under Sections 323, 325, 452 IPC. On completion of usual formalities of investigations, final report under Section 173 Cr.P.C. was filed for the trial of the accused. The accused was charged under Sections 452, 323, 325 IPC, to which he pleaded not guilty and claimed trial. During trial prosecution examined complainant Chand Singh as PW1, injured Gurcharan Kaur (PW2); Dr. D.S. Bhullar, who medicolegally examined the complainant and his wife as PW3; Mukhtiar Kaur, the eye witness as PW4; Dr. Satvir Singh (PW5) proved the x-ray report of the injured and the investigating officer ASI Bachan Singh as PW6. The stand of the accused when examined under Section 313 Cr.P.C. was of denial. However, no evidence in defence was led by him. The learned trial Court, on appreciation of evidence adduced on record, held the accused guilty under Sections 452, 323, 325 IPC and sentenced him to undergone one year with fine of Rs.300/-, six months with fine of Rs.200/- and one year with fine of Rs. 300/- respectively under the aforesaid counts. In default of payment of fine further simple imprisonment for one month, 15 days and one month respectively was imposed. Thereafter, the accused-respondent preferred an appeal, which, as noticed above, has been accepted and the findings of guilt recorded by the learned trial Court have been upsetted, leading to the acquittal of the respondent, necessitating the State to file the instant appeal. I have heard learned State counsel as well as learned Senior Counsel appearing on behalf of the respondent and have gone through the records of the case carefully. Learned State counsel has taken me through the judgments rendered by both the Courts below. It is apparent that what prompted the learned appellate Court to reverse the findings of guilt recorded against the accused, was that both the injured and eye-witness were related to each other and there was no independent corroboration to the said statements despite the fact that independent persons were admittedly present there; that there were discrepancies in their statements of injured as to the seat of injuries given by the accused and also as to where the occurrence actually 3 took place viz. in the street or in the house of the complainant because as per site plan prepared by the police, the occurrence took place in the street. Thus, according to the learned appellate Court all this materially affect the case of the prosecution and goes to the root of the case. Resultantly, the accused was acquitted. It is no doubt true that in this case injured Chand Singh, his wife Gurcharan Kaur and his sister Mukhtiar Kaur were the witnesses of fact. There is also no dispute that they are closely related to each other, but their relationship cannot be said to be suffice to discard their statements. A close relative cannot be characterized as an interested witness and there is also no absolute law that the evidence of relation witnesses is not entitled to any weight but this very circumstance would add to the value of their evidence because they would be interested in ensuring that the real culprit be punished and not the innocent person. The requirement is that his evidence has to be scrutinized carefully. I have gone through the statements of Chand Singh, his wife Gurcharan Kaur and sister Mukhtiar Kaur. They are corroborated with each other on material particulars with regard to the occurrence and the way in which the accused assaulted Chand Singh and his wife Gurcharan Kaur. Being wife and sister respectively of Chand Singh, their presence at the spot is natural. So far as discrepancies, as referred to above, are concerned, the same are not serious so as to discard their statement. It is very obvious that when eye witnesses are examined at length it is quite possible for them to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view on mere variations falling in the narration of an incident is an unrealistic approach for judicial scrutiny. Not only this, the medical evidence produced on record corroborates the ocular account. Five injuries, including one fracture was found on the person of Chand Singh while two contusions were detected on right forearm and left knee joint of Gurcharan Kaur. The police was informed about the occurrence without any delay and latches, as a result DDR No.29 dated 20.2.1997 was registered, which was 4 followed by the first information report, on receipt of the x-ray report showing fracture sustained by the complainant Chand Singh. That apart, it emerges out that the learned trial Court while delivering the judgments commented upon the callous attitude adopted by the police in investigating the case to favour the accused and also with regard to the act and conduct of the investigating officer making omission in preparing the site plan etc., as referred in the para Nos.14 and 15 of the judgment of learned trial Court But, the learned appellate Court fell in error of law while ignoring the observations of the learned trial Court and wrongly believed the investigating agency, who from the beginning was attempting to favour the accused by not registering the case against the accused even under Section 452 IPC and entered only a DDR entry in the records. In the light of the fact that there were material irregularities committed in the investigation of the case, the version put forth by the complainant and his witnesses cannot be thrown on ground just due to non- joining of independent persons. No doubt Gurcharan Kaur, in her statement, named some persons who attracted towards the scene of occurrence and they were given up by the prosecution, but their non-examination cannot materially affect the case of the prosecution for variety of reasons. Firstly, it is the quality and not the quantity of evidence that the Court has to see and secondly, it is generally seen in our traditional societies that the villagers are reluctant to depose against other, especially when the person accused is Sarpanch of the village. In the light of discussion above, this Court has no hesitation to conclude that the findings returned by the appellate Court are patently wrong and cannot sustain. Accordingly, judgment dated 18.4.2001 rendered by the appellate Court is set aside and that of trial Court is restored, so far as conviction of respondent for the offence under Section 323, 325, 452 IPC is concerned. Faced with the situation, learned Senior counsel appearing for the respondent has submitted that the respondent is the first offender; either after the awarding of sentence or after acceptance of his appeal, the respondent has not indulged in any illegal activity. Moreso, he is facing the agony of judicial proceedings since 1997. Thus, it has been submitted that the respondent may be granted the benefit of provisions of Probation of 5 Offenders Act, 1958. In support of his contention, learned counsel has referred to the judgment of this Court in the case of Hazara Ram & Anr. Vs. Jagir Singh & Anr., wherein this Court while following the dicta of Hon'ble Apex Court in the case of Hari Kishan & State of Haryana Vs. Sukhbir Singh, 1988(2) RCR (Crl.) 394 and of this Court in the cases of Bahadur Singh Vs. State of Punjab 2000(1) RCR (Crl.) 104 and Kapur Singh Vs. State of Punjab 2003(3) RCR (Crl.) 510, granted the benefit of Probation Act to the accused convicted and sentenced of offence under Sections 323, 325 and 452 IPC. Keeping in view the circumstances of the case, the conviction of the respondent under Sections 323, 325 and 452 IPC, as awarded by the learned trial Court is maintained, however, his sentence is hereby modified and he is ordered to be released on probation for a period of one year on his furnishing bonds to the satisfaction of Chief Judicial Magistrate, Nabha, within one month undertaking that during the probation period he shall maintain peace and be of good behaviour; shall not commit any offence and in case of any violation on his part, to appear and receive sentence as and when called upon to do so. That apart, respondent is directed to pay a sum of Rs.10,000/- as compensation to injured Chand Singh and Gurcharan Kaur, which shall be apportioned by them in equal shares. Learned CJM shall ensure deposit of compensation by the accused at the time of submission of bonds and disbursement thereof to the injured immediately. The fine, if paid, shall be treated as cost of proceedings. Criminal appeal stands disposed of in aforesaid terms. (ARVIND KUMAR) JUDGE July 1,2010 Jiten