IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.566-DBA of 1997 Date of decision: 07.01.2008 State of Punjab. -----Appellant. Vs. Manu Padam Parkash Sexana. -----Respondents. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. Rajesh Bhardwaj, DAG, Haryana for the appellant. Mr. Ishwar Lal, Advocate for the respondent. ----- Adarsh Kumar Goel, J. The State is aggrieved by acquittal of the respondent of the charge under Sections 307/34 IPC. FIR was registered on the statement of Suman Rani Tandon (PW-2), to the effect that on 11.10.1995 at 1.00 P.M. she was alone in her house. The respondent-accused along with his co- accused Subhash Saxena (since declared Proclaimed Offender) gave a call bell. She opened the door. The accused entered the house. They stated that they had been sent by her husband for fitting the board of electricity in the store of the house. 7-8 months earlier, they Criminal Appeal No.566-DBA of 1997 had done the work of electricity fitting in the house. After entering the house on above pretext, the respondent-accused put his hand on the mouth of Suman Rani and co-accused forcibly snatched the golden necklace. The respondent-accused further told his co-accused Subhash Chand to kill Suman Rani. Subhash Chand took out a sharp- edged weapon like knife and struck the same at the head of Suman Rani, on which, she fell down. The respondent-accused then caught hold of her and Subhash Chand gave many blows with sharp-edged weapon on the head. She became unconscious and was taken to the hospital. Gurmail Singh, Sub Inspector (PW-4) received the information and went to the hospital, but recorded her statement only on 20.10.1995, on the ground that she had not been declared fit to make statement by the doctor, earlier. PW-1 Dr. Baljit Singh examined Suman Rani on 11.10.1995 at 2.20 P.M. and found the following injuries:- “1. Five incised and 6 lacerated wound of varying length and width, present on the whole scalp. The wounds were bone deep. Fresh prouse bleeding present. Advised x-ray and patient kept under observation. 2. An incised wound 2.5 cm x 0.5 cm present on chin. Fresh bleeding was present. “ Injury No.1 was said to have been caused with blunt weapon while injury No.2 was caused by sharp-edged weapon. Injury No.2 was simple but injury No.1, after x-ray, was declared grievous. 2 Criminal Appeal No.566-DBA of 1997 PW-1 Dr. Baljit Singh stated that he declared the patient unfit to make statement from 11.10.1995 to 20.10.1995. After completing investigation, the accused was sent up for trial. The prosecution examined Dr. Baljit Singh PW-1, Ms. Suman Rani – the complainant PW-2, Darshan Singh PW-3, Inspector Gurmel Singh PW-4 and SI Norata Ram – the Investigating Officers of the case, PW-5. Dr. Baljit Singh (PW-1) proved the medico-legal report (Ex.PA) as well as his endorsement (Ex.PC/1), on the request of the police and intimation informing the police about admission of the patient in the hospital vide ruqa Ex.PD. He also proved the opinion dated 9.1.1996 (Ex.PE) to the effect that injury could prove dangerous to life. PW-2 Suman Rani, complainant, supported her version in her statement, Ex.PF, on the basis of which FIR Ex.PF/2 was registered, implicating the respondent-accused. She also deposed that she remained unconscious in the hospital for about 10 days and her statement was recorded on 20.10.1995. PW-3 Darshan Singh, deposed about having seen the injured in injured condition immediately after the occurrence and having taken her to the hospital. PW-4 Inspector Gurmel Singh proved the investigation, PW-5 SI Norata Ram proved further investigation and filed the challan. 3 Criminal Appeal No.566-DBA of 1997 In his statement under Section 313 Cr.P.C., the accused denied the prosecution allegations but he did not lead any defence evidence. The trial Court held that case of the prosecution was not proved beyond reasonable doubt and acquitted him, inter-alia, for the following reasons:- (i) The accused had earlier done the work of fitting electricity and no snatching of golden ornaments had taken place at that time; (ii) The complainant did not mention that her husband came for lunch at the time of occurrence though she deposed that usually he used to come to the house for lunch between 1.00 to 2.00 P.M.; (iii) It could not be believed that after infliction of first injury, the accused would wait for 10 minutes and inflict other injuries as alleged; (iv) Though the house was in locality, nobody came to save her; (v) The husband did not lodge the FIR though he came to know about the occurrence on the same day and took her to the hospital; 4 Criminal Appeal No.566-DBA of 1997 (vi) Though according to PW-3 Darshan Singh, Suman Rani was conscious when taken to the hospital, her statement was recorded only on 20.10.1995; (vii) No weapon of offence was recovered nor the same was produced; (viii) The complainant was not sure about the nature of weapon used; (ix) The doctor did not mention that screw driver was used for infliction of injuries; (x) The doctor declared the injury dangerous to life though initially, he had declared the same to be grievous. We have heard learned counsel for the parties. We find that the reasons given by the trial Court are perverse and unsustainable in law. The occurrence took place in broad day light. There was no previous enmity. PW-2 Suman Rani, injured, was taken to the hospital immediately after being injured and was medically examined by PW-1 Dr. Baljit Singh, Medical Officer of the Civil Hospital and he found a grievous injury including five incised and six lacerated wounds on the head. Wounds were bone deep. The injuries of such nature could not be self-suffered. PW-2 Suman Rani clearly deposed that 5 Criminal Appeal No.566-DBA of 1997 she knew the accused as they had earlier fitted electricity in their house. There was, thus, no scope for mistaken identity. In these circumstances, there was no earthly reason to reject the statement of PW-2 Suman Rani, which was fully corroborated by medical evidence. The trial Court misdirected itself in law in assuming that without weapon of offence being recovered or being properly described, the case of the prosecution could not stand proved. The offence alleged was causing of injuries and once the injured clearly proved causing of injuries by the accused, her version could not be rejected only on the ground of non-recovery of weapon. Subhash accused who used the weapon is still absconding. At best, it was the short-coming of investigation. Similarly, the injured having been taken to the hospital immediately after the occurrence and having been examined by a government doctor and intimation having been sent to the police immediately on the same day, mere fact that formal FIR was not lodged for 10 days, was not a ground for giving importance to delay in lodging of the FIR. Delay in lodging FIR may be a ground to ensure that an improved version by way of an after-thought, was not put forward. In the present case, even after cautious appreciation of evidence, the version of the comlplainant could not be held to be improved or after-thought. It is well-settled that hyper technical approach cannot be adopted for appreciating the oral evidence. Normal discrepancies on account of error of observations, error of memory or shock at the time of occurrence, cannot be given much significance. The discrepancies pointed out by the trial Court cannot 6 Criminal Appeal No.566-DBA of 1997 be termed as material discrepancies. The approach adopted by the trial Court cannot be held to be pragmatic or sound. Every hunch or hesitancy cannot be labelled as “reasonable doubt”. Reference may be made to the observations of the Hon’ble Supreme Court in Gangadhar Behera v. State of Orissa AIR 2002 SC 3633 (paras 17 to 21) and Vijayee Singh v. State of U.P AIR 1990 SC 1459 (para29). Mere absence of recovery of weapon cannot be a ground to reject the version of the prosecution when direct evidence is available and the same is reliable. Reference may be made to judgment of the Hon’ble Supreme Court in Gurnek Singh v. State of Punjab AIR 1988 SC 2249. We may also specifically discuss the reasons given by the trial court for acquittal. (i) Mere fact that on earlier occasion, snatching of golden ornaments had not taken place, was an irrelevant reason and could be no ground for concluding that if earlier such an event had not been taken place, the same could never take place in future. (ii) Omission to mention that husband of the victim came for lunch after the occurrence while stating that he used to normally come between 1 PM to 2 PM, is also an irrelevant reason. Every witness has his own way of describing the things and there is nothing unusual in the husband of the 7 Criminal Appeal No.566-DBA of 1997 victim visiting house for lunch. In any case, this being a matter of observation or manner of description, could not be a ground to disbelieve the witness. (iii) This reason also relates to the manner of description and for the same reasons, this observation is also misconceived. (iv) Mere fact that no body came to save the victim, does not belie the commission of offence, which is proved on version of the victim and is fully corroborated by the medical evidence. (v) Admittedly, the police had been duly informed by the doctor and had visited the hospital. In such a situation, mere fact that the husband did not separately inform the police, was no ground to reject the prosecution version. (vi) Admittedly, the doctor gave an endorsement that the victim was unfit to make a statement and mere fact that according to PW3, the victim was conscious, was a matter of his opinion. (vii) Non-recovery of weapon of offence cannot by itself be a ground to reject the version of the prosecution, which stands fully proved otherwise. The accused who was carrying the weapon has absconded and declared proclaimed offender. 8 Criminal Appeal No.566-DBA of 1997 (viii) Mere failure of the complainant to describe the weapon accurately, was a mere minor discrepancy and it is well known that a victim may not be able to precisely define the nature of weapon. General description has been given by the victim. (ix) The doctor has clearly described the weapon for injury (i) and (ii) and is not mentioning that it was screw driver which was used, was of no consequence. (x) The injury was described as grievous and mere fact that after X-ray, the same was described as dangerous to life, was of no consequence. All the above reasons given by the trial court for acquitting the accused are illegal, unsustainable and perverse. The approach of the trial court is against settled law for appreciating the evidence. Learned counsel for the accused submitted that the main accused having absconded, the respondent could not be punished. We do not find merit in this contention. The respondent clearly shared the common intention with the co-accused and participated in commission of offence in furtherance of common intention. It was also submitted that the opinion of the doctor about the injury being dangerous to life was afterthought, thus, the offence under Section 307 IPC was not made out. 9 Criminal Appeal No.566-DBA of 1997 We do not find any merit in this contention also. The accused caused grievous injury on the head which was found to be dangerous to life and offence under Section 307 IPC was clearly made out. Intention to cause death or an injury, which will result in death, could be clearly inferred. In any case, nature of offence will have bearing only on quantum of sentence. For the above reasons, we set-aside the acquittal of the respondent and convict him under Sections 307 read with Section 34 IPC. We have heard learned counsel for the respondent- accused on the question of sentence and he submitted that offence having taken place 12 years ago, a lenient view may be taken. He also submitted that the accused remained in custody during trial for some time. Having regard to circumstances of the case, we are of the view the ends of justice will be met if the respondent is sentenced to period of custody already undergone but required to pay adequate compensation to the victim. Accordingly, while sentencing the respondent to the period of custody already undergone, we direct the respondent to pay compensation of Rs.40,000/- to the victim within six months from today or to deposit the same in the trial Court. In that case, the trial Court will disburse the amount to the victim. In default, the respondent will undergo RI for one year. 10 Criminal Appeal No.566-DBA of 1997 The appeal is disposed of accordingly. ( ADARSH KUMAR GOEL ) JUDGE January 07, 2008 ( S. D. ANAND ) ashwani JUDGE 11