Criminal Revision No.989 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.989 of 2009 Date of Decision: 14 - 5 - 2009 Parkash .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Hari Om Attri, Advocate for the petitioner. Mr.S.S.Patter, Sr. DAG, Haryana. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed by Parkash son of Chajju, aged 52 years. He was tried in case FIR No.156 dated 29.8.1999 registered at Police Station Bhuna under Sections 341, 324, 326 IPC. The Court of Chief Judicial Magistrate, Fatehabad found him guilty for offence under Sections 341 and 326 IPC. For offence under Section 341 IPC, petitioner was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.500/-. In default of payment of fine, he was to undergo simple imprisonment for seven days. For offence under Section 326 IPC, petitioner was to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-. In default of payment of fine, he was to Criminal Revision No.989 of 2009 [2] undergo rigorous imprisonment for three months. Aggrieved against the same, the petitioner had filed an appeal. Additional Sessions Judge, Fatehabad upheld the findings of conviction. However, reduced the sentence from three years rigorous imprisonment to two years rigorous imprisonment under Section 326 IPC. In the present case, FIR was recorded on the statement made by Mukesh Kumar son of Randhir Singh. His statement Ex.PA read as under:- “Statement of Mukesh Kumar s/o Randhir Singh, Caste Gujjar, resident of Sui, Police Station Bhawani Khera, District Bhiwani, at present r/0 Saniyana, aged about 15 years. Stated that I am resident of above noted address and a student of 9th Class in a private school. My father is posted as Guard in State Bank of Patiala at Saniana. Our whole family is residing in Village Saniana in a rented accommodation. Yesterday on 28.8.1999 at 6.00 P.M., I along with my father Randhir Singh on a Government motorcycle were going to leave the motorcycle Rajdoot at State Bank of Patiala Branch Saniana. When we were going, at that time, Parkash son of Chhaju Ram was standing in front of his house armed with a gandasi. He got our motorcycle stopped and said to my father, for giving an application against him, he will teach lesson. Saying so, he gave a gandasi blow on the head of father. Due to gandasi blow, my father fell on the ground after becoming unconscious. On raising of noise of `Mar dia, Mar dia', Ram Chander son of Nath Ram was attracted at the spot. Randhir was taken to the hospital in a private vehicle.” On the basis of Ex.PA, the FIR was registered. Same was investigated. Criminal Revision No.989 of 2009 [3] Report under Section 173 Cr.P.C. was submitted. Judicial Magistrate Ist Class, Fatehabad on 20.10.1999 framed charge against the petitioner that on 28.8.1999 at about 6.00 p.m. in the area of Village Saniyana, he wronfully restrained Randhir Singh and thus committed offence under Section 341 IPC. Another charge under Section 326 IPC was also framed that petitioner armed with a sharp edged weapon had caused grievous hurt to Randhir Singh. Petitioner pleaded not guilty and claimed trial. Prosecution examined Dr.Suraj Kamboj, S.M.O., Civil Hospital, Bhuna as PW-1. He stated that on 28.8.1999, he examined Randhir Singh son of Mukhtiar Singh and found the following injury on his person:- “1. There was a incised wound 10cm x 1/2 cm bone deep left frontoprital region. Fresh bleeding was present. Patient was irritable and semi conscious. Blood stained vomits was present.” Injury was declared grievous. For declaring the injury as grievous, doctor has given opinion Ex.PD. The opinion read as under:- “In reference to MLR No.SBK/158/99 dated 28/8/99 injury no.1 K. 4.0. for x rays but pt. Did not go for x rays. On CT scan injury has been declared grievous in nature hence it can't be declared dangerous to life.” The trial Court has also examined Mukesh Kumar son of Randhir Singh as PW-1. Randhir Singh was examined as PW-2. PW-3 Ishwar Singh proved formal FIR. HC Rameshwar Dass proved recovery of Gandasi Ex.PW4/A from the petitioner after his arrest. Prosecution had examined no other witness. Statement of the petitioner under Section 313 Criminal Revision No.989 of 2009 [4] Cr.P.C. was recorded. All incriminating evidence was put to him. He denied the allegations and stated that the witnesses were deposing falsely. He had caused no injury to Randhir Singh. Randhir Singh suffered injury as after consuming alcohol, he fell on the bricks. It was further stated that after consumption of liquor, Randhir Singh used to misbehave with the ladies. Petitioner had restrained him again and again and due to this Randhir Singh along with his son has falsely implicated him in this case. Ram Chander who was attracted at the spot, appeared as DW-1. He stated that in his presence, no injury was caused to Randhir Singh. DW-2 Ram Niwas stated that on the day of occurrence, Randhir Singh was under the influence of liquor. Two Courts below have placed implicit reliance on the testimony of PW-2 Randhir Singh to hold the petitioner guilty for offence under Section 326 IPC. Mr.Hari Om Attri appearing for the petitioner, knowing fully well the limitations of the revisional Court, has not taken this Court to the task of re-appreciating and doing re-appraisal of the evidence. He has stated that occurrence in the present case had taken place on 28.8.1999 and statement of Mukesh Kumar was recorded on next day i.e. 29.8.1999, therefore, delay should be construed to discard the testimony of the witnesses. He stated that no X-ray or CT Scan was conducted, therefore, in the absence of these tests, it cannot be said that injury was grievous in nature. It has been further stated that statement of Randhir Singh was recorded on 24.4.1999, therefore, the statement was recorded after a gap of 24 days. Counsel state that even though Randhir Singh was discharged from the hospital on 6.9.1999, his statement under Section 161 Cr.P.C. was Criminal Revision No.989 of 2009 [5] recorded on 24.9.1999, therefore, the version given in the FIR was followed by injured Randhir Singh. Counsel has submitted that delay in recording statement under Section 161 Cr.P.C. of Randhir Singh, give credence to the petitioner. Counsel has further submitted that prosecution has failed to prove motive on the part of the prosecution to cause injuries. Lastly, counsel has submitted that petitioner has suffered a protracted trial since 1999, therefore, he should be leniently dealt with. Counsel for the petitioner has referred to order passed by the trial Court while determining the quantum of sentence, wherein it has been noted that petitioner is a handicapped person. Mr.S.S.Patter appearing for the State has submitted that the fact that gandasi blow was given on the head of Randhir Singh, petitioner ought to have tried for offence under Section 307 IPC. Petitioner knowing fully well that offence under Section 307 IPC is made out, has not opted to ask necessary searching questions to the doctor. Therefore, from the testimony of the witnesses, offence under Section 326 IPC was made out. It is submitted that Randhir Singh is last person to substitute or falsely implicate any other person. I have given my thoughtful consideration to the rival submissions advanced by counsel for the parties. This Court cannot be oblivious of the fact that this is a case where there is a one injured who has suffered a statement and has named only one accused for that injured. Delay in every case is not fatal to the prosecution. Delay is to be taken into consideration along with attending circumstances. Petitioner has caused a grievous injury. Son of the injured was aged 15 years old, a student of 9th class. His first duty was to look after his father. Therefore, statement made Criminal Revision No.989 of 2009 [6] on next day by the son is not to be discarded. Therefore, in the facts and circumstances, delay will not assume importance. In the present case, Doctor on basis of clinical observations and the report of CT Scan had declared the injury to be grievous. The cross-examination of the Doctor read as under:- “This injury by fall is rare possibility, because this is a single injury on the person. Admissibility of this injury by blunt weapon can not be ruled out, because in scalp injuries caused by blunt weapon look like sharp injury.” No question was put to the doctor to dislodge his opinion for declaring the injury as grievous. Therefore, defence counsel has not conveniently but has purposely not cross-examined the doctor knowing fully well that a cross- examination to this effect will be damaging to the petitioner. There is no rule of thumb that where x-ray report and CT Scan is not accepted, it cannot be inferred that injury was not grievous in nature. A perusal of injury show that patient was irritable and semi conscious. Blood stained vomits was also present. It is incised injury on the head which was bone deep. Therefore, the defence counsel had not probed the doctor regarding depth of the injury. Thus, the findings of two Courts below that injury is grievous, cannot be set aside. As stated earlier, even though the statement of Randhir Singh is recorded later, the same cannot be thrown to winds, as injured person will be the one person who will take the assailant to the task. Except the bald statement made by accused-petitioner under Section 313 Cr.P.C. that Randhir Singh suffered injury after having consumed liquor, it cannot be said that there was any animus on the part of the injured to falsely implicate Criminal Revision No.989 of 2009 [7] the petitioner. Lastly taking into consideration the protracted trial and that the petitioner is in the corridors of the Court for the last 10 years, sentence awarded to the petitioner is reduced from two years rigorous imprisonment to 1½ years rigorous imprisonment. However, the sentence of fine is maintained. Sentence awarded under Section 341 IPC shall run concurrently with the sentence awarded under Section 326 IPC. With aforesaid observations, the present revision petition is disposed off. ( KANWALJIT SINGH AHLUWALIA ) May 14, 2009. JUDGE RC