HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.15 of 2000 With Cr.A.No.27 of 2000 & Cr.A.No.101 of 2000. Reserved on: 20.12.2010. Decided on: January 05, 2011. 1. Criminal Appeal No.15 of 2000: Pritam Singh …Appellant. VERSUS State of H.P. ….Respondent. For the Appellant: Mr.H.K.Bhardwaj, Advocate. For the respondent: R.K.Sharma, Sr.Additional A.G. with Sh.Rajinder Dogra, Addl. AG. _____________________________________________________ 2. Criminal Appeal No.27 of 2000: Inder Singh …Appellant. VERSUS State of H.P. ….Respondent. For the Appellants: Mr.Ajay Sharma, Advocate. For the respondent: Mr.R.K.Sharma, Sr.Addl.Advocate General with Mr.Rajinder Dogra, Addl. AG. 3. Criminal Appeal No.101 of 2000: State of H.P. …Appellant. VERSUS Pritam Singh & Anr. ….Respondents. For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl. AG. For the respondents: Mr.H.K.Bhardwaj, Advocate for respondent No.1. Mr.Ajay Sharma, Advocate for respondent No.2. …2… Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes R.B.Misra, Judge: Criminal Appeal No.15 of 2000 has been preferred by appellant / convict / (Pritam Singh) under Section 374 Cr.P.C., whereas, Criminal Appeal No.27 of 2000 has been preferred by appellant / convict / (Inder Singh) under Section 374(2) Cr.P.C., for quashing and setting aside the impugned judgment and Criminal Appeal No.101 of 2000 has been preferred by the State of Himachal Pradesh under Section 377 Cr.P.C. for enhancement of sentence in reference to common judgment dated 21.12.1999, passed by learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No.37-J/VII/99, whereby, the appellants / accused have been convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of `5000/- each and in default of payment of fine, they were ordered to further undergo six months rigorous imprisonment, for offences under Section 307 read with Section 34 of the Indian Penal Code, in reference to F.I.R. No.204 dated 9th October, 1998, Police Station, Jawali. Whether the reporters of the local papers maybe allowed to see the judgment? …3… 2. Since all the three criminal appeals have arisen in reference to same common judgment, therefore, they are being disposed of by a common judgment. 3. In order to adjudicate the criminal appeals, above mentioned, it is necessary to give the factual background of the prosecution story. It appears that on 9.10.1998, PW-1, Panjab Singh / victim was working in his fields with Kulbir and PW-3 Dinesh Kumar. PW-2 Desh Raj was also working nearby. PW-3 Dinesh Kumar and Kulbir Singh, nephew of Panjab Singh victim / injured, collected the maize and went towards their house, in the meanwhile Pritam Singh and Inder Singh accused came there under the influence of liquor and asked PW-1 Panjab Singh / (complainant / injured / victim ) as to why he deposed against Inder Singh in a case. Victim tried to avoid them. However, accused Pritam Singh gave knife blows on the chest and abdomen of Panjab Singh and in all four blows. Accused Inder Singh also stated that he should be killed. Panjab Singh / (victim) raised an alarm, whereupon, PW-3 Dinesh Kumar and Kulbir came there and Panjab Singh was brought on the roadside and was taken to Fatehpur Hospital, where, PW-12, Dr.Ashok Singh Parmar, examined him and referred him to District Hospital, Dharamshala after issuing MLC Ext.PH. Report Ext.PA was lodged by PW-2 (Desh Raj) at Fatehpur Police Post which was recorded by PW-4 (Jarnail Singh). However, the victim was taken to Pathankot to a private clinic for treatment where he was treated by …4… PW-6 Dr.Rajiv Sehgal. PW-9 ASI Dhan Dev, officiating SHO, Police Station, Jawali, recorded F.I.R. Ext.PE and PW-1 Dalip Singh, Incharge, Police Post, Fatehpur, investigated the case. 4. After investigation, convict / accused were charged for the aforesaid offences. In order to prove its case, prosecution has examined as many as twelve prosecution witnesses, whereas, convict / accused through their statements under Section 313 Cr.P.C. have denied the prosecution case. 5. Prosecution examined PW-1 / Panjab Singh / victim / injured, PW-2 Desh Raj, who lodged report Ext.PA, PW-3 Dinesh Kumar, PW-4 LHC Jarnail Singh, PW-5 Ashok Kumar, PW-6 Dr.Rajiv Sehgal, PW-7 Onkar Singh, who produced knife in presence of PW-5 Ashok Kumar and the case property was deposited with PW-8 HC Jai Chand, who entered the same in the Malkhana register, PW-9 ASI Dhan Dev, PW-10 SI Ram Chand, PW-11 Dalip Singh and PW-12 Dr.Ashok Singh. PW-10 SI Ram Chand arrested the accused and on completion of investigation, filed challan in the Court. 6. PW-1, Panjab Singh / injured / victim, stated that accused Pritam Singh belongs to village Jambal Tika Khod, whereas, accused Inder Singh belongs to the same village and is cousin of PW-1. On 9.10.1998 Panjab Singh was working in his maize field along with Kulbir and PW-3 Dinesh Kumar, whereas, PW-2 Desh Raj and PW-7 Onkar Singh were also working in their respective fields, at that time. PW-1 has …5… further stated that accused Pritam Singh gave a knife blow on his chest and another blow on his abdomen and in all four blows were given on his chest and abdomen. Accused Inder Singh stated that PW-1 should be killed. PW-1, however, had raised alarm and small children working nearby also raised alarm. PW-2 Desh Raj came firstly on hearing the cries when PW-1 received first blow and PW-3 Dinesh Kumar and Kulbir came little later from the other side and on receiving the blows PW-1 became unconscious. PW-1 has further stated that he retained consciousness next day at about 9/10 A.M. at Pathankot Hospital. PW-1 Panjab Singh could recognize the knife / (like a fish) by which blows were given to him and accordingly knife Ext.P-5 was acknowledged by him. In cross examination also he reiterated the same version as has been given in the examination in chief and in cross examination PW-1 victim / Panjab Singh has specifically denied that he sustained injuries as a result of fall on the sumps of maize crop and has also denied that after sustaining injury, when he was taken to Fatehpur Hospital, he was conscious. PW-1 has also denied that PW-7 Onkar Singh took him to Sehgal Hospital to procure false certificate instead of taking him to Dharamshala. 7. PW-2 Desh Raj, supporting the prosecution case and materially corroborating the testimony of PW-1 / Panjab Singh, has stated that on hearing cries of PW-1 / Panjab Singh, he came there and saw accused Pritam Singh inflicting blows …6… on PW-1 / Panjab Singh. Inder Singh was also there having Drati in his hand. PW-3 Dinesh Kumar ad Kulbir followed accused Pritam Singh but Pritam Singh ran away. Accused Inder Singh also ran away from the road. PW-2 along with Kulbir Singh, PW-3 Dinesh Kumar and PW-7 Onkar Singh took Panjab Singh from the place to his house and thereafter went on foot to Bhatoli to bring a van. PW-2 has stated that he came back with van in about 50 – 75 minutes and PW-1 / Panjab Singh was brought on a cot up to a distance of one kilometer from his house up to road side by PW-7 Onkar Singh, Parkash Singh and Sadhu Ram and others and was taken to Fatehpur Hospital in van where doctor examined PW-1 / Panjab Singh in the van itself and stated that he be taken firstly to Fatehpur Chowki. Accordingly, when PW-1 / Panjab Singh was taken to Fatehpur Hospital, he was unconscious. Then PW-2 went to Police Chowki in van and lodged the report and from Police Chowki PW-1 / Panjab Singh was taken to Fatehpur Hospital where doctor examined Panjab Singh and referred him to Zonal Hospital, Dharamshala. The doctor had also advised that PW-1 / Panjab Singh be taken immediately to Dharamshala but the patient was serious, as such, he was taken to Pathankot for treatment. In cross - examination, PW-2 Desh Raj has stated that PW-7 Onkar Singh was accompanying him when PW-2 lodged the report and PW-1 Panjab Singh fell down on the field after sustaining injuries and blood also fell on the fields …7… and his clothes were also stained with blood. PW-2 has further stated in his cross - examination that when police came on the spot on 9.10.1998 he showed them the place soiled with blood and the police took into possession the blood stained soil. PW-2 has also reiterated in his cross- examination that PW-1 Panjab Singh had sustained four injuries on his chest and abdomen and has also denied that PW-1 Panjab Singh has sustained injuries as a result of fall on dandas of the stumps of maize. 8. PW-3, Dinesh Kumar, another eye-witness, materially corroborated the testimony of PW-1 / Panjab Singh and PW-2 / Desh Raj by stating that he saw accused Pritam Singh inflicting blows with something to his uncle PW-1 / Panjab Singh, who fell down and blood was oozing from his body. PW-3 and Kulbir Singh brought PW-1 to his house and thereafter he was taken on cot to the roadside. PW-3 Dinesh Kumar has further stated that when Kulbir Singh and he himself ran after both the accused persons, accused Pritam Singh threw knife towards them and ran away from the place. Accused Inder Singh was having Drati in his hand. Then he, PW-2 Desh Raj, Kulbir and PW-7 Onkar Singh brought PW-1 / Panjab Singh to his house and PW-7 (Onkar Singh) brought the knife from the field which was thrown by accused Pritam Singh. PW-3 has also stated that he pointed out the place of occurrence to the police on the next day, who took into possession the blood stained soil and also …8… stated in his cross examination that PW-3 along with Kulbir followed the accused for 15 – 20 yards after he threw the knife. The knife neither was removed by PW-3 nor by Kulbir so thrown by accused Pritam. PW-3 has very categorically stated in his cross-examination that PW-7 (Onkar Singh) brought the knife from his house and then it was produced before the police. PW-3 (Dinesh Kumar) has also stated that PW-1 / Panjab Singh was not having cordial relations with the accused. 9. PW-4, LHC Jarnail Singh, reduced into writing the report on 9.10.1998 at 8 PM in presence of ASI Dalip Singh (PW-11), lodged by PW-2 Des Raj, when he came along with PW-7 (Onkar Singh). PW-5 Ashok Kumar has stated that on 10.10.1998 police came to the spot where PW-7 (Onkar Singh) handed over the knife to the police which was recovered by Memo Ext.PB and the recovery memo was signed by PW-7 Onkar Singh and PW-3 Dinesh Kumar and the knife was sealed in cloth with seal ‘K’ and the seal was handed over to me. PW-5 Ashok Kumar has denied that the knife was handed over to the police by PW-7 Onkar Singh in the house of PW-1 Panjab Singh and recovery memo was prepared in the house of PW-1 Panjab Singh. 10. PW-12 Dr.Ashok Singh Parmar, Medical Officer, CHC Fatehpur, has deposed that on 9.10.1998 at 9.10 P.M., PW-1 Panjab Singh was examined and following injuries were observed:- …9… “1. 3 cm x 2” incised penetrating wound in the light iliac fossa. Wound is cutting through the muscular layer underlying the skin. Intestine is visible from the wound. Margins of the wound are clear cut. Blood is coming out from the wound. 2. 2.5 cm x 1.5 cm incised penetrating wound on the right hypochondrium on the sub-costal margins. Wound is lying 4 cm medial to the left mammary line. Margins are clear cut. Bleeding present. 3. 3 cm x 2 cm incised penetrating wound present on the left 5th rib about 1 ½ cm medial to the mid clavicular line. Active bleeding present. Surgical emphysema present around the wound. Lungs shows the evidence of collapse. Depth of the wound cannot be detected as there is fear of excess bleeding on exploration. 4. 3 cm x 2 cm penetrating incised wound present in the 2nd rib space in the mid clavicular line in the left side. Margins of wound are clear. Wound is cutting the intercostals muscles of 2nd and 3rd rib space. Depth of the wound cannot be measured due to the fear of bleeding into chest.” 11. PW-1 / victim was referred to District Hospital, Dharamshala for treatment and opinion regarding his injuries. The probable duration was within six hours and the injuries were caused with sharp edged weapon. The patient was taken to Sehgal Hospital, Pathankot and PW-12 examined the opinion of Surgeon Ex PX dated 10.10.1998 at 6 PM and thus the injuries No. 2, 3 & 4 were dangerous to life while injury No.1 was grievous. 12. PW-12 in cross examination has stated that when patient was brought, he was conscious and responding to the questions and PW-12 neither asked from the injured patient about the name of the assailants nor he volunteered. PW-12 has also denied specifically that he asked the name of …10… assailant, but injured was unable to tell their names. PW-12 did not give the opinion regarding the nature of injuries, firstly he could measure the depth of injuries which could only be measured in operation theatre. PW-12 also did not see any X-ray report or ultrasound report before giving his opinion. However, he considered the opinion of Dr. Sehgal (PW-6) and has affirmed that if length of injury was 3 cm, the width cannot be two inch with knife Ex P5. 13. PW-6, Dr. Rajiv Sehgal, has stated that on 10.10.98 at about 1.35 PM, PW-1 / Panjab Singh was brought by Parkash Singh and Desh Raj, narrating that patient had multiple stab wounds on the chest and abdomen in an incident which took place on 9.10.98 at 6 PM, while working in the field, he was abused by and then stabbed by some Pritam Singh and after that Panjab Singh / PW-1 had fallen unconscious and was taken to CHC Fatehpur by Desh Raj (PW-2) and Onkar Singh (PW-7) where he was given first aid and thereafter, he was referred to ZH, Dharamshala for further management. PW-6 has also opined that patient was fit to make the statement. 14. In cross-examination, PW-6 has stated that he had not mentioned the width and depth of the wounds in Ex PC. He had mentioned in MLC that injuries No. 1 to 4 required ultrasound and X-ray and both these X-rays and ultrasound were done but PW-6 could not trace the ultrasound report and X-ray report, therefore, he could neither bring it before the court nor handed over to the police. PW-6 has denied …11… that no ultrasound and X-ray report was done and in order to help the party, MLC was prepared wrongly. 15. PW-7 Onkar Singh, in his endeavour to support the prosecution case has stated that while he was working in his fields on 9.10.98 at about 6 pm, he noticed Pritam and inder Singh coming from Bhatoli side and going towards the fields of Panjab Singh. After some time, he heard the noise from the field of Panjab Singh “Maar Diya Maar Diya” and when PW-7 reached towards the field of Panjab Singh and was just 50 meters from his fields, he observed Pritam Singh and Inder Singh running towards other side being followed by Kulbir Singh and Dinesh. Pritam Singh threw the knife which was in his hand towards those boys / (Kulbir Singh and Dinesh). PW-7 went to Panjab Singh, injured / victim, who was lying in injured condition. Desh Raj, PW-2 was also there. Thereafter Kulbir and Dinesh also came there and after some time other villagers including Balwant Singh and other ladies gathered there and PW-1 was brought to his house and Des Raj PW-2 went to arrange some vehicle / (van) towards Fatehpur side and after some time since condition of the Panjab Singh was deteriorating, it was thought proper to carry the injured in a cot. As such, he was taken in a cot towards Bhatoli and after covering the distance of 1 ½ Kms, Desh Raj, PW-2 met them with the van and the took the injured to Fatehpur hospital. On advice of the doctor, Panjab Singh was taken to police chowki to lodge the report. Desh …12… Raj, PW-2 lodged the report, where PW-7 Onkar Singh has put his signatures on it. Thereafter, Panjab Singh injured was carried to Fatehpur where the doctor provided first aid and then referred the injured to Zonal Hospital, Dharamshala. Since the condition of the patient was serious, he was taken to Pathankot, where he was admitted in Sehgal hospital. PW- 7 had taken the knife in his custody on the date of occurrence and when the police came in the village on 10.10.98, he handed over the same to the police. The police sealed the same. As per testimony of PW-7 made in cross examination, blood was also lying in the filed when PW-7 reached the place of occurrence for the first time. PW-7 accompanied Panjab Singh injured firstly from the spot to his house and then he was carried to the road side and then to Fatehpur hospital. PW-7 has further stated that it is incorrect that Panjab Singh replied to the questions put up by the doctor at Fatehpur hospital in his presence and has also denied that the report was falsely lodged against the accused persons in connivance with PW-2 Desh Raj. PW-8 HC Jai Chand has sealed two parcels allegedly containing knife and clothes of injured. PW-9 ASI Dhan Dev received copy of rapat Ex PA from Fatehpur police post on the basis of which FIR was registered and his endorsement on the report is Ex PA/1. …13… 16. PW-10 ASI Ram Chand arrested the accused Inder Singh on 22.10.98 and Pritam Singh on 3.11.1998. On completion of the investigating, he prepared the challan. 17. PW-11 ASI Dalip Singh, investigated the case and while supporting the prosecution case, has stated that when he inspected the spot and prepared the site plan Ex PW-11/A with the assistance of PW-2 and PW-7, at that time, PW-7 produced knife, which after sealing , was taken into possession vide Memo Ex PB in the presence of witnesses. PW-7 identified the knife Ex P5. 18. Following arguments on behalf of accused / respondent Pritam Singh has been made by Sh.H.K. Bhardwaj, learned counsel for the said respondent:- (1) There are contradictions in medical evidence; (2) X-ray and ultra sound reports were not intentionally produced by Doctor Rajiv Seghal, PW-6 who was running private clinic at Pathankot; (3) There was no recovery of blood stained soil and non sending of knife to the expert; (4) No blood stained earth was taken into possession and knife produced by Onkar Singh PW-7 was not sent to the expert for examination; (5) The prosecution has failed to get the expert report to compare that the blood on the knife was same as that of the Panjab Singh / victim / injured; …14… (6) There was no recovery of weapon of offence at the instance of accused, whereas the knife Ex P5 was alleged to have been produced by Onkar Singh, PW-7, after 24 hours. 19. It has also been argued by Sh. H.K. Bhardwaj, learned counsel for the accused/respondent Pritam Singh that the FIR lodged by Des Raj has not narrated correctly about the incident and the Panjab Singh / injured-victim did not state the names of assailants before PW-12 Doctor Ashok Singh. However, Mr. Ajay Sharma, learned counsel for the appellant-convict Inder Singh has vehemently argued that there is delay in lodging the FIR and the prosecution has failed to prove any substantial role of Inder Singh and the use of knife was not said to have been proved in the assault in question and the statement of PW-6 Dr. Rajiv Sehgal cannot be reliable and creates confusion when he did not mention the width and depth of wounds in Ex PC and also did not mention in MLC that injuries No. 1 to 4 require ultrasound and X-ray and both these X-ray and ultrasound through were done, but could not be produced before the police. As such, the real status position of injury could not be ascertained. 20. It has come in the evidence of PW-3 Dinesh Kumar that the blood fell in the fields, where Panjab Singh fell after getting the blows. However, he did not point out the place of occurrence to the police on the next day. But during investigation, no such blood stained soil was taken into …15… possession. Such aspect may be lapse on the part of investigating Officer, though site was inspected by Investigating Officer PW-11, Dalip Singh on the next day after he came from Pathankot. However, it cannot be said that there was sufficient blood or not which could have been taken into possession by the Investigating Officer. In fact, this could have been lapse on the part of prosecution but mere non recovery of blood stained soil shall not demolish the case of the prosecution. If the blood stained earth was sent and expert has given analysis, that could have been more corroborating piece of evidence in favour of prosecution. As such, the prosecution case cannot be said to be fatal by not taking into possession blood stained soil only. Undisputedly, knife was thrown by Pritam Singh when he was chased by Dinesh Kumar PW-3 and Kulbir Singh. The knife was thrown away which was handed over to the police next day and non sending of knife to the expert also does not demolish the prosecution case when other corroboratory evidences are available. Report was lodged at Police Post, Fatehpur at 8 PM by PW-2 Des Raj, copy of which has been produced as Ex PA. The said report was sent to police Station, Jawali on the same day and FIR Ex PE was registered on 9.10.98 at 9.30 PM. 21. In the facts and circumstances, it cannot be said that there has been manipulation and in any case the FIR was not delayed. Non production of X-rays and ultrasound by …16… PW-6 Dr. Rajiv Sehgal also does not make the prosecution case fatal as Dr. Rajiv Sehgal has very clearly mentioned in his medical report and gave opinion that before he had examined Panjab Singh, injured, he had already been examined by PW-12 Dr. Ashok Parmar at CHC Fatehpur and observations have been made by him in MLC Ex PH indicating the nature of the injuries and the Medical Officer had given his opinion that injuries No. 2 to 4 were dangerous to life and injury No. 1 which was penetrating wound was grievous in nature. Thus, in the present case, the case of the prosecution does not rest upon the solitary statement of one medical officer. PW-6 Dr. Rajiv Sehgal did not produce the X-ray and ultrasound report. Other medical report by PW-12 Dr. Ashok Parmar substantially indicate that intestines were visible from the wound and accordingly he had opined that this injury was grievous and there is nothing to hold that his opinion is incorrect. There is no reason to hold that PW-6 Dr.Rajiv Sehgal intentionally did not produce X-ray and ultrasound report to the police as non production of such things would not make the prosecution case fatal as the prosecution case has been proved from the testimony of injured witnesses supported by other prosecution witnesses. PW-7 has also reached on the spot immediately and had seen the accused persons running from that place. There is nothing in their statements to indicate that they have deposed falsely to implicate the accused persons. The …17… medical evidence read with testimony of prosecution witnesses reveal that nature of injuries were of such nature which were dangerous to life and one of the injuries was also termed as grievous and there is nothing in the testimony of medical officers to hold that these injuries inflicted on Panjab Singh were possible by fall on stems of maize. Non collection