HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 532 of 2003 Decided on: 13.8.2010 State of H.P. ……… Appellant. Versus Tek Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondents: Mr.Rakesh Jaswal, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class, Baijnath, dated 29.2.2002, vide which the respondents were acquitted of the charge framed against them under Section 335 read with Section 34 of the IPC. 2. Briefly stated the facts of the case are that on 26.3.1995, at about 9.00 p.m., a statement was made by one Lal Chand that on 19.3.1995, at about 6.30 p.m., he was coming back to his house from Paprola and Vijay Kumar and Sunil, his nephews, met him, who were searching their father. He also accompanied them to the house of Parshotam, where their father was working. They found Kishori Lal sitting in the house of Parshotam, who was taking tea and the said Kishori Lal had also taken liquor at that time and was not ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - able to talk or walk properly. After some time, they all proceeded to their house and on way, Kishori Lal made a complaint about the theft of his Ghan and about the difficulty he was facing in his work. On way, he was stopped by Saran Dass, respondent, and he made a complaint that Kishori Lal gives abuses to them under the influence of liquor. At some distance, sons of Saran, namely, Tek Chand and Mehar Chand alias Munna, were giving beatings with legs and fists to Kishori Lal. He tried to rescue Kishori Lal. Saran also came there and gave two slap blows to Kishori Lal upon which blood started oozing out from his nose. They all carried Kishori Lal to his house. Doctor Avinash was called on the next day on 21.3.1995 and gave medicines. The injured Kishori Lal was taken to the hospital on 22.3.1995. It was also alleged that said Kishori Lal remained unconscious from 19.3.1995 to 25.3.1995 and he died on 25.3.1995 itself. Thereafter, the present report was lodged by Lal Chand, brother of the deceased. 3. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondents leading to their acquittal. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. The first and the most material point, which arises for consideration is that the occurrence had taken place on 19.3.1995 at 6.30 p.m., but the report was lodged after 7 days i.e. on 26.3.1995 at 9.00 p.m., after the injured had died. No explanation has been given by the - 3 - complainant for not lodging the report, though he alleged in the report that he was not aware if any report in regard to the beatings is to be made. He also came up with the plea that the deceased was unconscious from 19.3.1995 to 26.3.1995. It is, therefore, clear that no explanation has been given by the complainant in the report lodged with the police. 6. The said complainant Lal Chand has been examined as PW-1 and it is clear from a perusal of his statement that the deceased had complained about the theft of his Ghan but had not named any person who has committed this theft. He reiterated that the accused persons had pushed Sunil and Vijay in the bushes and were giving beatings to Kishori Lal, but he did not state if the beatings were given with legs, fists or with any weapon. He stated that he cannot say if the beatings were given with any weapon since it had become dark and it was not visible at that time. He further stated that Saran also gave 2-3 slap blows to Kishori Lal and he was not able to speak and the respondents ran away. This witness has made improvements in his statement and he was also confronted in regard to these improvements. He further stated that Bishan Dass had got his brother Kishori Lal admitted on 22.3.1995 in the hospital where the doctor gave him medicines and injections. 7. PW-2 Sunil Kumar, the other eye witness and son of the deceased, has also stated that Tek Chand and Munna were hiding themselves in the bushes and they gave beatings to Kishori Lal by catching hold of him from his head. He also stated that the said accused pushed him and Vijay in the - 4 - bushes. He further stated that Saran also gave blows to the deceased. PW-1 Lal Chand had given a different sequence of events that two of the accused were giving beatings to Kishori Lal but had not stated with which object or that they had caught hold of him from head and beatings were given, whereas Sunil Kumar stated that all three accused were giving beatings to the deceased. PW-2 Sinil Kumar also stated that the third accused Saran gave beatings with slaps. PW-2 has further admitted that on the next day, one doctor Avinash treated the injured and thereafter on the next day, his father was taken to Baijnath Hospital and then was referred to Palampur Hospital where he died. He also stated that after his father had been brought to Palampur Hospital, he died after 2-3 days. 8. It is, therefore, clear from a perusal of the statements of these two witnesses that they have not corroborated the statements of each other in regard to the manner in which the accused persons gave beatings. The deceased was got treated from a private medical officer and thereafter was taken to Baijnath Hospital from where he was referred to Palampur Hospital. The said private doctor Avinash was not examined, who treated the deceased and there is no record from Baijnath Hospital or Palampur Hospital where the deceased was referred and he remained admitted at Palampur Hospital for 2-3 days as per the testimony of PW-2 Sunil Kumar. No MLC from Baijnath Hospital or from Palampur Hospital has been produced on record nor any record of admission or discharge from these hospitals was produced by the prosecution to show that he was treated there. - 5 - 9. Apart from the above, the delay of 7 days in lodging the FIR has not been explained by the prosecution. One of the witnesses, namely, PW-1 Lal Chand, brother of the deceased, stated that they were not aware if the report has to be lodged, while PW-2 Sunil Kumar, son of the deceased, has come up with the plea that they had no money to make the report. Therefore, in the facts and circumstances of the case, it cannot be said that the delay in question has been explained and rather taking into consideration the facts of the case, this delay proves to be fatal for the prosecution story, which cannot be relied upon. It has also come up in the evidence that the deceased was under the influence of the liquor and was not able to walk or talk and the possibility that the deceased had sustained the injuries by fall, as suggested to the witnesses, cannot be ruled out. 10. Moreover, the Medical Officer PW-6 Dr.K.C. Kalyan, who gave the postmortem report, has simply stated that the postmortem report is Ext.PW-6/A but the details of postmortem, which were necessary to be recorded, have not been recorded in his statement. He has given the cause of death as “intra cerebral hemorrhage & meningitis.” No specific injuries have been attributed or proved on record. A perusal of the postmortem report shows that there were some abrasions on the back of elbow, knee and on leg whereas the other witnesses have not stated that the deceased had suffered injuries on his elbow, knee or leg and as such the medical evidence also does not corroborate the ocular version given by the witnesses. In case there was no provocation for the accused persons to commit the offence and no provocation - 6 - has been given by the complainant since he had not named any person who may have stolen his Ghan and as such ingredients of offence under Section 335 of the IPC cannot be said to have been proved since neither it has been proved that there was any provocation nor any grievous injury suffered by the deceased was proved on the record. In regard to the offence under Section 323 of the IPC, keeping in view the contradiction in the ocular version by the witnesses not corroborated by the medical evidence and the delay in lodging the complaint, the offence under Section 323 of the IPC cannot be said to have been proved. 11. In view of the above discussion, I hold that the final findings recorded by the learned trial Court leading to the acquittal of the respondents cannot be said to be perverse calling for an interference by this Court. As such, there is no merit in the appeal filed the appellant, which is dismissed accordingly. August 13, 2010. (V.K. Ahuja), (TILAK) Judge