HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 31 of 2004 Decided on: 25.10.2010 Kundan Lal ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.Vikas Rathore, Deputy Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the court of the learned Additional Sessions Judge (Presiding Officer, Fast Track Court), Kangra at Dharamshala, dated 5/6.1.2004, vide which the appellant was held guilty and convicted and sentenced under Section 307 of the IPC for rigorous imprisonment for five year and to pay a fine of Rs.25,000/-. In default of payment of fine, the appellant was to further undergo simple imprisonment for one year. 2. Briefly stated, the facts of the case are that a statement was made by complainant Onkar Nath under Section 154 Cr.P.C. before H.C. Sarvjeet Singh, Police Station Thakurdwara, at Amritsar on 12.2.1999, in which he had alleged that he had purchased a hotel from the appellant for a sum of Rs.80,000/-, for which a writing was also executed ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - and the appellant was demanding Rs.60,000/- more and had also lodged a report with Police Station, Mukerian against the complainant. It was also alleged by the complainant that the appellant had been coming to his hotel and giving him threats to pay him Rs.60,000/- otherwise he would kill him. It was alleged that on 10.2.1999 at 1.30 p.m., when the complainant reached the hotel and his servant Janak Raj gave him tea, at that time, the appellant came there with a sword and attacked him. The appellant started inflicting injuries upon the person of the complainant, which were inflicted upon his head, arms and legs and the complainant became unconscious at the spot. He further alleged in the report that he is not aware as to what happened thereafter and on regaining consciousness, he found himself at Guru Nanak Dev Hospital, Amritsar. 3. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate Ist Class, Court No.II, Nurpur, who committed the case to the court of the Sessions, from where the case was assigned to the learned trial Court. The learned trial Court tried the appellant leading to his conviction and sentence as detailed above. 4. I have heard Mr.Rakesh Jaswal, learned counsel for the appellant and Mr.Vikas Rahore, learned Deputy Advocate General, for the respondent and have gone through the record of the case. 5. The submissions made by the learned counsel for the appellant were that there has been considerable delay in lodging the report with the police by the complainant, - 3 - which delay has not been explained by the complainant or the prosecution. It was also submitted that the identity of the appellant was not established that he had given the blows on the person of the complainant. The learned counsel for the appellant had also pointed out some infirmities in the prosecution case, which shall be discussed below. Thus, it was submitted that since the identity of the appellant was not established that he had caused the injuries on the person of the complainant, the appeal is liable to be accepted. 6. On the other hand, the learned Deputy Advocate General had supported the impugned judgment for the reasons given therein. 7. On appraisal of the record of the case, it is clear that the prosecution had examined 11 witnesses to substantiate their case. Apart from the statement of the complainant, there are statements of two other eye witnesses which can be said to be most material. 8. The complainant Onkar Nath, who has been examined as PW-2, has stated that he had taken on rent a hotel in village Milwan from the appellant and had paid Rs.80,000/-, vide agreement, copy of which is Ext.PW-2/A. He stated that the accused owned 10 shops in Village Milwan and out of these, three shops/rooms were being used as hotel. He further stated that after 3-4 months of the running of the said hotel, the accused started demanding more money from him amounting to Rs.60,000/- and also used to give him threats to leave the said hotel. The accused also threatened to kill him. On 10.2.1999, he reached the hotel at about 1.00 p.m. Janak Raj, who is his servant, was present there and he asked - 4 - him to provide him a cup of tea. When he started taking tea, the accused assaulted him with a Kirpan (sword) from behind. He further stated that when he turned back after the blow, he saw the accused hitting him with the sword. The accused gave him 7-8 blows of the Kirpan. He was wearing coat, sweater, shirt and an under vest inside. On receiving second blow, he fell down on the ground. Nobody else was present at that time. When he was assaulted, Ashwani was coming back to the tea stall and when he fell down, accused went to Milwan Village. He further stated that Kala, an Electrician, took him on his scooter to Civil Hospital, Mukerian. The said Janak Raj was holding him from behind on that scooter. He was admitted to the Hospital and was examined by the doctor. He stated that the MLC Ext.PW-2/B bears his signatures. He was unconscious during his treatment at Mukerian and when he regained consciousness, he found himself at Guru Nanak Dev Medical College and Hospital, Amritsar. The police recorded his statement Ext.PW-2/C on 12.2.1999. He further stated that the police took into possession his cloths Exts.P-1 to P-4. He also identified the sword being Ext.P-5. 9. PW-3 Janak Raj is the servant of the complainant PW-2 Onkar Nath, who has corroborated the statement of the complainant that the complainant came to the shop and asked him to prepare a cup of tea. He further stated that all of a sudden, the appellant appeared on the scene and assaulted Onkar Nath with a sword from behind. Onkar Nath fell down on the road and in the meanwhile, Ashwani Kumar was also coming to the hotel. On seeing Ashwani Kumar, accused ran away towards Milwan village. He took Onkar Nath on the - 5 - scooter to Mukerian hospital and the scooter was driven by Kala, who is running a shop of Electrician adjoining to the Hotel. 10. PW-4 Ashwani Kumar has corroborated this statement and stated that when he came back to the hotel, he saw accused assaulting his brother-in-law with a sword. On seeing him, the accused ran away and Kala took Onkar Nath on scooter to the Civil Hospital, Mukerian. 11. Apart from the above, the prosecution had also examined PW-11 Dr.Shavinder Singh, Senior Medical Officer, who had examined the injured on 10.12.1999 at 2.30 p.m. and found the following injuries on his person: “He was complaining of headache and giddiness. He was conscious. His BP was 110/70. His pulse was 84 per minute and his both pupils were normally reacting and stimulating to light. Injure No.1 An incised wound 10 cm x 1 cm into bone deep over the centre of parietal region 14 cm x 1 cm from right pinna, 13 cm from left pinna, 5 cm from the occipital region and 16 cm from anterior hair line. Wound was placed longitudinally fresh bleeding was present. Injury No.2 An incised wound 13 cm x 1 cm bone deep over the occipital region of the scalp crossing the mid line starting from left side (5 cm from the 7th cervical spine) going to right (upto 6 cm from the right pinna). Fresh bleeding was present. Injury No.3 Red abrasion 5 cm x 3 cm over the lateral aspect of right lower leg 13 cm from the right lateral malleolus. - 6 - Injury No.4 Red abrasion 8 cm x 1 cm over the anterior aspect of right tibial tuberosty. Injury No.5 Red abrasion 20 cm x 2 cm over the lumbo-sacral Injury No.5 Red abrasion 10 cm x 1/2 cm over the anterior medial aspect of right forearm 12 cm from the elbow joint. Ill defuse swelling 10 cm x 5 cm around the contusion was present. Injury No.7 The complain of pain over the chest without any obvious external injury.” PW-11 Dr.Shavinder Singh stated that injuries No.1 and 2 were inflicted with sharp weapon and rest of the injuries with blunt weapon, though the complainant has stated that all the injuries were inflicted with sharp weapon i.e. sword. He stated that patient was referred to Medical College, Amritsar for further examination. He issued MLR Ext.PW-2/B. The patient was brought to him on 12.2.1999 again and injury No.1 was declared as grievous while injury No.2 was simple. He stated that injuries No.1 and 2 are possible with sword Ext.P-5. He also stated that depending upon the amount of force applied, the possibility of the linear abrasions being caused by a sharp weapon Ext.P-5 over the cloths cannot be ruled out. 12. PW-1 Dr.Daljit Chauhan had treated the injured at Medical College, Amritsar and has recorded the summary of treatment. According to him, there was a history of unconsciousness present. On examination, the patient was conscious. There as a stitched wound 7cm x 2 cm present on the occipital region vertically. The patient was given - 7 - treatment and was discharged on 12.2.1999. The summary report of the treatment is Ext.PW-1/A and the CT scan report is Ext.PW-1/C. He also stated that the police of P.P. Thakurdwara moved an application Ext.PW-1/C to know about the fitness of the injured on 12.2.1999 at 2.00 p.m., when the injured was declared fit to make statement. The report is Ext.PW-1/D. He stated that on admission, the patient was not fit to make statement due to head injury and his verbal response was not normal at that time. The patient was discharged from the hospital at about 4.00 p.m. on 12.2.1999. 13. It has come up in the statement of PW-10 HC Sarvjeet Singh, the Investigating Officer in the present case, that a wireless message was received on 10.2.1999 at 4.00 p.m. at Police Station Mukerian, which was recorded vide rapat Ext.PW-9/A. He proceeded to Civil Hospital, Mukerian. But by that time, the patient had already been referred to Guru Nanak Hospital. He stayed for the night at Mukerian. On the next day i.e. on 11.2.1999, he visited C.H. Amritsar and met Doctor Daljit Chauhan, who was attending the said patient. He enquired from the doctor about the fitness of the patient to make a statement but the doctor told him that though the patient was conscious but not in a position to speak. On the next day, i.e. on 12.2.1999, he again moved an application Ext.PW-1/C and the doctor declared the patient to be fit to make statement. He recorded the statement Ext.PW- 2/C and sent it to Police Station, Indora for registration of the FIR. He took into possession the blood stained cloths Exts.P-1 to P-4 of the injured Onkar Nath vide memo Ext.PW- - 8 - 4/A and Ext.PW-10/A. He further stated that he inspected the spot on 13.2.1999, prepared the site plan Ext.PW-10/B and also took into possession the blood stained soil vide memo Ext.PW-10/C. In pursuance of the disclosure statement Ext.PW-5/A, he effected the recovery of the sword and the same was taken in possession vide memo Ext.PW-5/C. 14. On appraisal of the evidence led by the prosecution, it is clear that there are several infirmities in the prosecution case, which have not been explained and that make the prosecution story doubtful. 15. It has come up in the statement of PW-10 that he reached Mukerian Hospital on the same day i.e. on 10.2.1999 and stayed there for the night and on the next day i.e. on 11.2.1999, he visited the Civil Hospital at Amritsar and took the oral opinion of the Medical Officer. There was no question of oral opinion having been taken by him and he should have filed an application for the opinion of the Medical Officer as to whether the patient was fit to make statement or not. However, for the reasons best known to him, he did not file any application in writing and sought the opinion only on the next day i.e. on 12.2.1999 and took the opinion of the Medical Officer and recorded the statement of the complainant under Section 154 Cr.P.C. It is for the first time on 12.2.1999 at about 2.00 p.m. that this fact was told to him by the complainant that he had been assaulted by the appellant. Before that, no statement had been made to the police by the complainant himself or by either of the two witnesses, namely, PW-3 Janak Raj and PW-4 Ashwani Kumar. It has come up in the testimony of PW-10 Head Constable Sarvjeet - 9 - Singh that Ashwani Kumar had met him at the Hospital on 11.2.1999 itself and according to the complainant, Ashwani Kumar had reached the spot and on seeing him, the appellant had run away from the spot. This clearly shows that he was examined as an eye witness and was aware of the facts and he could have stated in his statement to the police about the occurrence or the version of even Janak Raj PW-3, servant of the complainant, could have been recorded. However, the Investigating Officer, as has come up in his statement, did not make any enquiry from the persons present there including Ashwani Kumar PW-3 or other persons present there about the occurrence. He also admitted that he had not maintained any record regarding the non-fitness of the injured Onkar Nath on 11.2.1999. 16. Coming to the question if the complainant was fit to make statement or not, the Medical Officer PW-11 had clearly observed that the patient was conscious. This fact has been recorded in MLC Ext.PW-2/B also. The Medical Officer at Amritsar, who also treated the injured and prepared a history, PW-1 Dr.Daljit Chauhan has clearly stated that the patient was conscious at the time of his admission. Both the Medical Officers, therefore, have opined that the patient was conscious all along right from the day of his admission on 10.2.1999. There is no opinion of any of the Medical Officer given on 11.2.1999 that the patient was declared unfit or unconscious to make a statement and, therefore, the statement of the Investigating Officer PW-10 H.C. Sarvjeet Singh does not inspire confidence. He has - 10 - failed to assign any reasons for not taking the opinion of the Medical Officer in writing. 17. Apart from the above, it has also come up in the testimony of PW-11 Dr.Shavinder Singh Mathon, who examined the injured on the day of his admission i.e. on 10.2.1999 that the name and other particulars were given by the complainant/injured himself to him, which were recorded by him in the MLC. In the MLC Ext.PW-2/B, no history of the person who inflicted the injuries or his name has been mentioned though the identity of the appellant was quite known to the complainant as per his testimony. It may be that the Medical Officer was not aware of the fact that the history has to be given and whatever was told to him, he recorded it in Ext.PW-2/B. This was the first opportunity available to the complainant to name the assailant in which he had failed and in subsequent examination also, prior to 12.2.1999, the complainant never disclosed the name of the assailant at any time, neither this was confirmed from the eye witnesses by the Investigating Officer. 18. Apart from the above, the statement Ext.PW-2/A recorded under Section 154 Cr.P.C. was recorded on 12.2.1999 and was sent to the Police Station on 13.2.1999 and on that basis the FIR was registered on 13.2.1999, as is clear from Ext.PW-1/B that it was registered at 9.30 a.m. According to the calendar of which a judicial notice can be taken, 13.2.1999 was Second Saturday and it may be that the FIR was not sent to the residence of the Magistrate since 13.2.1999 was a holiday and 14.2.1999 was Sunday. However, 15.2.1999 was a working day and still the FIR was sent to the office of - 11 - the Magistrate which was received on 16.2.1999 at 10.00 a.m. in the office of the Magistrate. It is true that the judicial notice of this fact can be taken that since it was not a special report in a serious offence, it was not to be sent to the residence of the Magistrate but in routine, this FIR registered on 13.2.1999, should have been put up before the Magistrate on 15.2.1999 but the same was received only on 16.2.1999 in the office of the Magistrate, for which there is no explanation on record. The prosecution had failed to examine the Constable who took the said report to prove as to whether it was sent on 15.2.1999 or 16.2.1999, but the noting on the FIR Ext.PW-1/B shows that it was received by the Magistrate on 16.2.1999 at 10.00 a.m. The late sending of the FIR, particularly, in view of the defence taken by the accused that he has been falsely implicated and the manner in which it had reached late, casts a doubt about the prosecution story which delay, in question, in sending the copy of the FIR to the Magistrate cannot be ignored. 19. Another infirmity which has been pointed out during the course of argument is that both the principal eye witnesses examined in the case, namely PW-3 Janak Raj, servant of the complainant Onkar Nath, and PW-4 Ashwani Kumar, brother-in-law of the complainant, have clearly stated that their statements were never recorded by the police and they are deposing for the first time about the occurrence. In case they had stated that their statements were recorded by the police and the said statements were proved from the statements of these witnesses and the Investigating Officer, the accused could have been confronted with the said - 12 - statements, which is not so since the statements were never proved or exhibited during the trial of the case. No questions were put up to both these witnesses that these statements were made by them and the witnesses were also not declared hostile by the learned Prosecution during the trial of the case. It was required of the learned Public Prosecutor to have confronted the witnesses with their previous statements on record and the same should have also been proved from the testimony of the Investigating Officer, which was not done for the reasons best known to the learned Prosecutor for the State. It is, therefore, clear that the possibility that these statements were recorded by the Investigating Officer of his own cannot be ruled out when both the witnesses who were either related to the complainant or were working for him had no reason to depose falsely and they clearly stated that their statements were never recorded by the police, which fact also casts a doubt about the investigation conducted by the police and as such this fact also cannot be ignored. 20. Apart from the above, it has come up that the in building, in which the hotel was being run, there were other shops also and shopkeepers must be present in the adjoining shops and the timing of the occurrence is also not such i.e. around 1.00 p.m. when the witnesses were not available. However, none from those shops or from the passengers standing outside the hotel on the National Highway have been examined by the prosecution to substantiate their case. The only independent witness associated was Kala who was running a shop of Electrician adjoining to the hotel, who - 13 - had taken the complainant to the hospital, but, even he was not produced by the production to corroborate the prosecution story. The conduct of the Investigating Officer in not associating the adjoining shopkeepers or the persons from the nearby locality or the persons present at the spot cannot be appreciated. 21. The net result of the discussion is that the prosecution case solely rests upon the testimony of the complainant whose version that it was the appellant who assaulted him was recorded by the police after two days and the copy of the FIR registered by the police reached the Magistrate only on the fifth day of the occurrence. Till 12.2.1999, the identity of the person who assaulted the complainant was not established. Moreover, the complainant had the opportunity to state the facts or lodge the report with the police since he was found conscious by both the Medical Officers and had the opportunity to name the assailant or the manner in which he was assaulted to the first Medical officer PW-11 Dr.Shavinder Singh at Civil Hospital Mukerian, but this was never done. The net result of the discussion is that the statements of both the eye witnesses cannot be relied upon. Moreover, even on minor particulars, the statement of the complainant stands contradicted by other evidence, which makes his version doubtful. PW-2 Onkar Nath has stated that PW-3 Janak Raj was working with him for the last about one year whereas PW-3 Janak Raj has stated that he was working for Onkar Nath for the last 20-22 years. Why the complainant stated so falsely is not clear from the record and it may be that he tried to - 14 - show that PW-3 Janak Raj was an independent person or was working with him for the last one year only. Since there are shops etc. near the place or the customers are visiting the hotels having meals during lunch hours, as has come up on record from the statement of PW-3 Janak Raj, therefore, the non-joining of the witnesses from the nearby shops also makes the story of the prosecution doubtful. PW-3 Janak Raj has admitted that he had gone to the Hospital but he stated that he did not disclose anything to the doctor in the Civil Hospital. Even the report could have been lodged by PW-4 Ashwani Kumar when the Police Officer met him on the next day of the occurrence and the complainant was closely related to him, who had received the injury with a sword but he never volunteered to make a statement to the police to depose about the facts which makes the prosecution story doubtful. 22. In view of the fact that both the eye witnesses have clearly stated that they were never examined by the police during investigation of the case also makes their version doubtful and cannot be relied upon in the facts and circumstances of the case. 23. In view of the above discussion, I accordingly hold that the findings of the learned trial court holding the appellant guilty and convicting and sentencing him are liable to be set aside and the appeal is liable to be accepted. Therefore, the findings of the learned trial Court are set aside. Resultantly, the conviction and sentence imposed upon by the appellant is also set aside. The bail bonds furnished by the appellant shall stand discharged. Fine, if deposited, shall be refunded back to the appellant after the expiry of - 15 - three months. The appeal stands allowed and disposed of accordingly. Oct.25, 2010. (V.K. Ahuja), (TILAK) Judge