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2002 DIGILAW 1038 (PNJ)

Surat Singh v. State Of Haryana

2002-10-09

S.S.GREWAL

body2002
Judgment S.S.Grewal, J. 1. This appeal is directed against the judgment and order of Shri M.S. Nagra, Additional Sessions Judge, Ambala in Sessions Case No. 58 of 1987, F.I.R. No. 190 dated 3.7.1987 under Section 304 I.P.C., Police Station Ambala Cantt. vide which he convicted and sentenced Surat Singh to undergo R.I. for a period of seven years. 2. The case of prosecution in a nutshell is that Hari Chand deceased and Parkash Chand were working as labourer for cleaning of oil tankers in front of old oil Depot Complex, Ambala Cantt. On 1.7.1987 at about 8.30 P.M. Hari Chand had given a piece of advice to Surat Singh in the presence of Parkash Chand not to ruin his life over a widow called Chando who was leading immoral life. On this, there was a quarrel between Hari Chand and Surat Chand. Hari Chand gave a slap to Surat Singh who responded with head blow. Parkash Chand, however, separated the two and all the three left for their respective places. On the next day, i.e. 2.7.1987 Ram Kumar elder brother of Hari Chand had accompanied Hari Chand upto the place of job work of Hari Chand where they met Parkash Chand. While the three were busy talking Surat Singh came armed with a lathi and gave a lathi blow on the head of Hari Chand who fell down on the ground. Surat Singh gave two lathi blows to Hari Chand one on the right thigh and the other on the left wrist. Ram Kumar and Parkash Chand intervened and Surat Singh ran away along with his lathi towards the railway track. The occurrence was witnessed by Daya Shankar who was standing nearby. 3. After the assault, Balbir Singh father of Surat Singh reached the spot in a short while and helped Ram Kumar and Parkash Chand in removing Hari Chand to Civil Hospital, Ambala Cantt. Balbir Singh father of the accused got Hari Chand admitted in the hospital by representing that Hari Chand had voluntarily suffered the injuries. He also prevailed upon Ram Kumar brother of Hari Chand to endorse his view by pleading that he will manage every thing. The condition of Hari Chand deteriorated at about 5-30 PM when he vomited blood and Ambala Civil Hospital authorities recommended to take the injuries to PGI Hospital at Chandigarh. He also prevailed upon Ram Kumar brother of Hari Chand to endorse his view by pleading that he will manage every thing. The condition of Hari Chand deteriorated at about 5-30 PM when he vomited blood and Ambala Civil Hospital authorities recommended to take the injuries to PGI Hospital at Chandigarh. Balbir Singh father of the accused accompanied by Parkash Chand and Sukhdev Chand brother-in-law of Hari Chand removed Hari Chand to PGI hospital in Ambulance where Hari Chand died at 11.30 P.M. 4. Parkash Chand came from Chandigarh and informed Ram Kumar in the morning about the death of Hari Chand. Ram Kumar immediately reported the matter to the police post Parao and on the basis of the statement made by him, a case was registered at 10.15 A.M. on 3.7.1987. The accused was arrested and after completion of the investigation, a final report regarding commission of offence under Section 304 I.P.C. was submitted to the Illaqa Magistrate, who vide order dated 12.10.1987 had committed the accused to stand his trial before the Court of Sessions. The accused was charged under Section 304 I.P.C. to which he had pleaded not guilty and the prosecution was directed to lead its evidence in support of the charge. 5. The prosecution examined PW1 Dr. Vinay Goyal, P.W.2 Dr. S.K. Gupta, P.W.3 Ruldu Ram Sharma, PW4 Inspector Gurdial Singh, PW5 SI Jaimal Singh, PW6 Ram Kumar, PW7 Parkash Chand and PW8 ASI Dev Raj. 6. In the grounds of appeal, it is alleged that Additional Sessions Judge, Ambala had not considered the evidence, on record and the legal propositions put before it in the right perspective. It is also alleged that occurrence had taken place on 2.7.1987 at about 10.45 A.M. and F.I.R. was recorded on 3.7.1987 at about 10-15 A.M. to 10-45 A.M. and FIR was despatched to Illaqa Magistrate on 4.7.1987 at 8 A.M. and the same was received by the Illaqa Magistrate at 8.50 A.M. So, there is a long delay which stands unexplained and has been slightly ignored by the Court of Additional Sessions Judge, Ambala. It is also alleged that the medical evidence does not support the prosecution. It was stated by P.W. 2 that injured was brought to Civil Hospital, by Om Parkash Constable. Prosecution is not supported by any independent witness. 7. I have heard the learned counsel for the parties and gone through the record. It is also alleged that the medical evidence does not support the prosecution. It was stated by P.W. 2 that injured was brought to Civil Hospital, by Om Parkash Constable. Prosecution is not supported by any independent witness. 7. I have heard the learned counsel for the parties and gone through the record. 8. Learned counsel for the appellant has argued that occurrence had allegedly occurred on 2.7.1987 at about 10.45 A.M. The FIR was allegedly recorded on 3.7.1987 at 10.15/10.45 A.M. It was despatched to Illaqa Magistrate on 4.7.1987 at 8 A.M. and the same was received by the Illaqa Magistrate at 8.50 A.M. This clearly shows that though it is alleged that the FIR was recorded at 10.15 A.M. on 3.7.1987, but it must have been recorded at 8 A.M. on 4.7.1987. Otherwise, there was no ground why the FIR was not sent to Illaqa Magistrate, immediately. In this case, he referred to the judgments reported as Sawinder Singh and another v. State of Punjab, 2000(1) RCR(Crl.) 163 (P&H); Balbir Singh v. State of Punjab, 1983(3) RCR(Criminal) 728; and Chhotu v. State of Haryana, 1996(3) RCR(Crl.) 557 (SC) : 1996(4) RCC 153. 9. Learned counsel for the appellant also pointed out that as per medico-legal report, there are five injuries. PW1 Doctor Viney Goyal has also mentioned five injuries, whereas Dr. S.K. Gupta, PW2 has mentioned only three injuries on the person of injured. The medical evidence is contradictory. Learned counsel has also pointed out that no independent witness has been examined. 10. Learned counsel for the State has pointed out that injury No. 2 is bleeding from nose and injury No. 5 is a contusion. So, the remaining three are from lathi (stick). Learned counsel also pointed out that PW6 Ram Kumar is brother of deceased and PW7 Parkash Chand is an independent witness, who supported the prosecution evidence. 11. The prosecution story is supported by PW6 Ram Kumar, who is brother of the deceased. PW7 Parkash Chand met them by chance. 12. Sawinder Singh and another v. State of Punjab, 1998(1) RCC 655 : "Occurrence allegedly took place at about 6.30 p.m. on 24.11.1991. Matter was reported to the police by Joginder Kaur on 25.11.1991 at about 7 a.m. in chowk Bhakna Kalan. First Information Report was recorded at 7.50/8.10 a.m. on 25.11.1991 at Police Station, Gharinda. 12. Sawinder Singh and another v. State of Punjab, 1998(1) RCC 655 : "Occurrence allegedly took place at about 6.30 p.m. on 24.11.1991. Matter was reported to the police by Joginder Kaur on 25.11.1991 at about 7 a.m. in chowk Bhakna Kalan. First Information Report was recorded at 7.50/8.10 a.m. on 25.11.1991 at Police Station, Gharinda. Special report reached Chief Judicial Magistrate, Amritsar at 3.05 p.m. on 25.11.1991. It is true that during those days State of Punjab was afflicted with the menace of terrorism and people used to shudder at the thought of leaving their house during night. We agree with the State counsel that Joginder Kaur was dissuaded from reporting the matter during the night of 24.11.1991 because of this condition prevailing in the State of Punjab. We, however, do not feel convinced that special report could not have been delivered to the Magistrate before 3.05 P.M. at Amritsar. If the First Information Report had come into existence really at 7.50/8.10 a.m. Special report could have been sent to Amritsar soon thereafter. Special report could have been reached Chief Judicial Magistrate, Amritsar by about 12.00 noon. Courts at Amritsar are at a distance of 20 kilometers from Police Station, Gharinda as per SI Baldev Singh, SHO Police Station Gharinda (PW11). There is a metalled road connecting Gharinda with Amritsar. In our opinion no wonder first information report did not come into existence at 7.50/8.10 a.m. It came into existence at about 11.00 a.m. or thereafter. First information report it appears though purports to have been recorded at 7.50/8.10 a.m. really came into existence much after. When we say so we do not mean to say that the prosecution case is false or Joginder Kaur and Jasbir Kaur eye witnesses are not credible." Chhotu v. State of Haryana, 1996(4) RCC 153. "If the First Information Report was lodged by Rahu Ram (PW5) on the July, 1986 at about 9.00 a.m. why was it not forwarded to the Illaqa Magistrate till 14th July, 1986 ? Rahu Ram (RW5), the injured complainant, however, could not throw much light on this issue. The investigating officer alone could explain this delay. The copy of the First Information Report (Ex.PD/1) which is placed on records unmistakably indicates that the same was received by the Illaqa Magistrate on 14th July, 1986. Rahu Ram (RW5), the injured complainant, however, could not throw much light on this issue. The investigating officer alone could explain this delay. The copy of the First Information Report (Ex.PD/1) which is placed on records unmistakably indicates that the same was received by the Illaqa Magistrate on 14th July, 1986. The investigating officer has given no explanation whatsoever as regards the delay in forwarding the FIR (Ex. PD/1)." 13. Neither it is in doubt nor in dispute that Hari Chand had received lathi/stick injuries on his head and died. First Information Report was allegedly recorded on 3.7.1987 at 10.15/10.45 A.M. and it was despatched to Illaqa Magistrate at 8.00 A.M. It reached the Illaqa Magistrate at 8.50 A.M. It is also in evidence that the condition of Hari Chand deteriorated at 5.30 P.M. and he was shifted by Balbir Singh, Parkash Chand and Shukhdev Chand brother of Hari Chand to P.G.I. where he died during night. Parkash Chand came early in the morning to Ambala and informed Ram Kumar about the death of Hari Chand. So, Ram Kumar was an eye witness who remained at Ambala. There is no explanation why he did not go to police station to lodge the First Information Report. Otherwise also, when the condition of Hari Chand has deteriorated in the Ambala hospital. The doctor at Ambala Hospital must have sent the message to the police as Hari Chand is allegedly shifted to P.G.I. after the occurrence by Balbir Singh, Parkash Chand and others which has taken place on 2.7.1987 at 10.15 A.M. This clearly establishes that there is an inordinate delay in lodging the FIR as also sending the same to the Illaqa Magistrate of about 22 hours. So, it is evident that FIR must have not come into existence on 3.7.1987 but has come into existence early in the morning of 4.7.1987 and the observations of the above cited judgments also support the same. 14. Inordinate unexplained delay in lodging the FIR cast doubt about the presence of eye witnesses Ram Kumar and Parkash Chand. Either they have not witnessed the occurrence or they have failed to identify the assailant and named them after enquiry. So, benefit of doubt must go to the accused. Unexplained delay of 48 hours in lodging the FIR also cast heavy doubt on the prosecution version. Either they have not witnessed the occurrence or they have failed to identify the assailant and named them after enquiry. So, benefit of doubt must go to the accused. Unexplained delay of 48 hours in lodging the FIR also cast heavy doubt on the prosecution version. In these circumstances, the conviction and sentence of the appellant cannot be upheld and is set aside. The appellant is acquitted.