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2004 DIGILAW 400 (PNJ)

Suba Singh v. State of Punjab

2004-03-31

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - This appeal is directed against judgment/order dated March 9, 1992 passed by the Additional Sessions Judge, Ferozepore vide which the appellant has been convicted and sentenced as under : Suba Singh 307 Indian Penal Code To undergo RI for 3-1/2 years and to pay a fine of Rs. 2500/- or in default to undergo RI for two months. 2. The case of the prosecution is that on 4.4.1990 at about 10.00 P.M. Mal Singh (PW3), along with his brother Swaran Singh (PW4), was taking meals. Someone from outside their house abused their father Harnam Singh calling by name. Mal Singh and his brother Swaran Singh came up of the house and found Suba Singh and Boota Singh present there. Suba Singh appellant had a gandasa while Boota Singh was empty handed. Suba Singh again abused and challenged them to come out of the house. Thereupon, Swaran Singh asked them to restrain from abusing and told them to go their house. In the meantime, his father Harnam Singh and his brother also came there. Boota Singh caught hold of Mal Singh and Suba Singh gave a gandasa blow on the head of Swaran Singh on the left side. Swaran Singh fell down on the ground and raised raula "Mar Ditta Mar Ditta" by his father Harnam Singh and his brother Kaka Singh, on which the accused ran away from the spot with their respective weapon of offence. Swaran Singh was removed to the Civil Hospital, Gurharshahai on the next day i.e. on 5.4.1990 where he was referred to Civil Hospital, Ferozepore and was medico- legally examined on 5.4.1990 at about 9.40 A.M. ASI Kartar Singh recorded the statement of Swaran Singh injured but he was found unfit to make statement on that day. ASI recorded the statement of Mal Singh on 8.4.1990 Exhibit PW3/A on the basis of which FIR Exhibit PW5/C was recorded. 3. After completion of the investigation, challan was presented before the Ilaqa Magistrate. As the case was exclusively triable by the Court of Session, the same was sent to the said Court and ultimately the case was entrusted to Additional Sessions Judge, Ferozepore for trial. 4. From the persual of the documents relied upon by the prosecution, the appellant was charge-sheeted under Section 307 read with Section 34 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. From the persual of the documents relied upon by the prosecution, the appellant was charge-sheeted under Section 307 read with Section 34 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined PW1 Dr. M.L. Narang, Medical Officer, who on 5.4.1990 at about 9.40 A.M., medico-legally examined Swaran Singh son of Harnam Singh, 20 years old male, resident of village Ranjitgarh and found the following injury on his person : "An incised wound 7 cm x 1 cm x bone deep on the left side of the head. The wound started 10 cm above the medial end of left eyebrow ran longitudinally backward. Blood clot was present. X-ray was advised." The injury was kept under observation. The patient was conscious. 6. PW2, Dr. Ashok Kumar Bhagat Radiologist, Civil Hospital, Ferozepore, who x-rayed Swaran Singh and opined that there was depressed fracture of the left side of parietal bone. PW3 Mal Singh is the complainant and eye-witness of the occurrence. PW4 Swaran Singh is an injured witness. PW5 ASI Kartar Singh is the investigator of this case. 7. When the appellant was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing against him in the prosecution evidence, he denied simpliciter and alleged false implication. When the appellant was called upon to lead evidence in defence, he did not examine any witness. 8. After appreciating evidence on record, the learned Additional Sessions Judge believed the prosecution version and convicted and sentenced the appellant as stated in para No. 1 of the judgment. Aggrieved by which, the present appeal has been preferred. 9. Shri M.S. Sidhu, learned counsel for the appellant, assails the judgment of the learned trial Court on the ground that the trial Court has not appreciated the evidence on record in right perspective. He submitted that there is a delay in lodging the FIR. He submitted that as per the case of the prosecution, the occurrence took place on 4.4.1990 at about 10.00 PM in front of the house of Mal Singh but the FIR has been lodged after four days. He contended that the appellant has been falsely implicated in this case after making due deliberation and consultation. He contended that the injured has remained conscious throughout. He contended that the appellant has been falsely implicated in this case after making due deliberation and consultation. He contended that the injured has remained conscious throughout. He contended that as per the prosecution, firstly the injured was taken to Civil Hospital Gurharshahai which adjoins to the police station and the wall between the police station and the hospital is only three feet in height but no FIR was registered on 4.4.1990. He contended to cover up this delay, the prosecution has concocted a story that Mal Singh had left his mother in the hospital with the injured and went to his maternal grand-father and on the next day he went to Ferozepore. His statement was recorded which is Ex. PW3/A. He stated that even if Mal Singh did return on the second day from his maternal grand-fathers village, but there is no explanation for the delay of three days. He submitted that the learned trial Court has over-looked this aspect of the case. He further submitted that the witnesses are materially discrepant in their statement and the ocular version is also not consistent. He contended that as per the statement of PW2 there was only depressed fracture of the left side of parietal bone. If the injury was caused with gandasi then there must have been a cut on the wound. 10. On the other hand, Shri B.S. Sewak, learned Deputy Advocate General, Punjab, submitted that the delay has been fully explained by the prosecution. He submitted that after the occurrence, the injured was removed to Civil Hospital Gurharshahai. The injured was not fit to make statement and was in serious condition. After giving him the first aid, he was referred to Civil Hospital, Ferozepore. He submitted that complainant Mal Singh left his mother by the side of injured Swaran Singh and went to his maternal grand-fathers village to inform them. He contended that when Mal Singh came back (even though the injured was unfit to make statement) he met the police in the hospital and made statement Ex. PW3/A on the basis of which FIR Exhibit PW5/C was recorded. He further submitted that ocular version given by Mal Singh and Swaran Singh is consistent with the medical evidence. He contended that injury is on the head. PW3/A on the basis of which FIR Exhibit PW5/C was recorded. He further submitted that ocular version given by Mal Singh and Swaran Singh is consistent with the medical evidence. He contended that injury is on the head. He pointed out that it is not necessary that there should be a cut on the head if the injury is given with sharp edged weapon but he pointed out that there was an incised wound on the scalp and PW2 Dr. Ashok Kumar Bhagat opined that the injury was a depressed fracture. He contended that depressed fracture is result of the gandasa blow which was given with heavy force. He also supported the judgment of the trial Court. 11. I have considered the rival contentions raised by Shri M.S. Sidhu, learned counsel for the appellant and Shri B.S. Sewak, Deputy Advocate General, Punjab and also screened the evidence with their assistance. 12. The delay ipso facto is not fatal to the case of the prosecution if it is explained satisfactorily but a delay of even few hours is fatal if it is not explained satisfactorily. In the instant case, the delay has not been explained by the prosecution. The explanation given by Mal Singh is not plausible. Mal Singh has given the explanation that they first took injured Swaran Singh to Civil Hospital Gurharshahai and then he was referred to Civil Hospital Ferozepore. He left his mother with the injured in the hospital and then he went to his maternal grand-fathers village. On the next day he came to Ferozepore and then his statement was recorded as PW3/A. He has not given any reason for what purpose he visited to his maternal grand-fathers village - whether he went to inform them about the incident or to take money for treatment of the injured. 13. PW1 Dr. M.L. Narang medically examined Swaran Singh on 5.4.1990 at 9.40 A.M. He deposed that the patient was conscious. Pulse was 100 per minute irregular. Blood Pressure was 100/70. Pupils on both sides of eye were equal an reacting to light. He further deposed that the patient was referred to Civil Hospital Ferozepore for X-ray examination and for further treatment on the same day. He has not deposed that injured was in serious condition and, therefore, he was referred to Civil Hospital Ferozepore. Dr. Blood Pressure was 100/70. Pupils on both sides of eye were equal an reacting to light. He further deposed that the patient was referred to Civil Hospital Ferozepore for X-ray examination and for further treatment on the same day. He has not deposed that injured was in serious condition and, therefore, he was referred to Civil Hospital Ferozepore. Dr. Narang on receipt of report of the X-ray examination, declared the injury was dangerous to life. Mal Singh PW3 on whose statement the FIR was lodged deposed that injured was medically examined at 9.40 AM and referred for X-ray examination at 12.10 PM. Throughout this period, as per Doctor Narang PW1, the injured remained conscious. Bhola Singh elder brother of Swaran Singh also remained with the injured throughout. If Bhola Singh, elder brother of Swaran Singh, was in the hospital with the injured at Gurharshahai and Mal Singh was also there, then there is no explanation why Mal Singh did not go to lodge a report when the hospital and Police Station Gurharshahai are adjacent to each other and only a wall intervenes when the patient was conscious. Had the injured been in serious condition, then it can be said that Bhola may have the curiosity first to look after his brother and not to lodge the report. As it has been noticed above, after getting admitted the injured in Civil Hospital, Ferozepore, he went to his maternal grand-fathers house and came back on the next day i.e. 6.4.1990, then there is no explanation for not lodging report for two days i.e. 7th and 8th April, 1990. 14. ASI Kartar Singh PW5 deposed in his statement that on 8.4.1990, he went to Civil Hospital Ferozepore for recording the statement of Swaran Singh injured, he was unfit to make the statement on that day as per endorsement of Dr. Exhibit PW5/A/1 on the application Ex. PW5/A. He has further deposed that same was the position on 7.5.1990 as per the application Ez. PW5/B. He further deposed that on 8.4.1990 he recorded the statement of Mal Singh Exhibit PW5/A, on the basis of which FIR Exhibit PW5/C was recorded. 15. The prosecution has not examined the doctor who declared the injured unfit to make statement on 7.4.1990 vide application Ex. PW5/B and on 8.4.1990 vide endorsement Exhibit PW5/A/1. PW5/B. He further deposed that on 8.4.1990 he recorded the statement of Mal Singh Exhibit PW5/A, on the basis of which FIR Exhibit PW5/C was recorded. 15. The prosecution has not examined the doctor who declared the injured unfit to make statement on 7.4.1990 vide application Ex. PW5/B and on 8.4.1990 vide endorsement Exhibit PW5/A/1. ASI Kartar Singh PW5 has admitted in his cross- examination that he did not seek any opinion from Civil Hospital, Ferozepore, regarding the injury. He came to know that injured was of Ranjitgarh and was son of Harnam Singh. He did not go to the spot on 5th, 6th, 7th April, 1990. He did not get anything on 5.4.1990. Even he did not see Mal Singh on 7.4.1990 nor his statement was recorded. Without examining the doctor, it cannot be said whether he has actually made any endorsement on the application of the investigator. This shows that this application is a padding in the case only to cover up the delay. As per PW1 the injured was fully conscious when he was brought to the hospital or when he was referred to Civil Hospital, Ferozepore for x-ray examination. So, this shows that the prosecution did the padding in this case. Once the prosecution did padding to the case, the benefit of it must go to the accused. 16. The case of the prosecution is that the appellant has caused injury due to the reason that brother of Mal Singh (PW3) Kaka Singh had gone to the field, in which Suba Singh was a Seeri, for bringing fodder. After having exchanged some abuses between Suba Singh and Kaka Singh, Suba Singh appellant snatched the fodder from Kaka Singh and regarding that, they lodged a complaint with the Panchayat which was got compromised. This incident was fifteen days prior to the date of occurrence. If the compromise was effected between the parties then there was no question of causing injuries by the appellant. Furthermore, the motive is double-edged weapon. For that reason the complainant party might have the grudge to falsely implicate the appellant. 17. The prosecution has examined PW3 Mal Singh and PW4 Swaran Singh who are real brothers. If the compromise was effected between the parties then there was no question of causing injuries by the appellant. Furthermore, the motive is double-edged weapon. For that reason the complainant party might have the grudge to falsely implicate the appellant. 17. The prosecution has examined PW3 Mal Singh and PW4 Swaran Singh who are real brothers. No doubt, the evidence of related and interested witnesses cannot be discarded simply on the ground that the case is based on the evidence of related witnesses, but when the case is based on the evidence of interested witnesses, it puts the Court on its guard to scrutinize their evidence with great care and caution. 18. In the instant case, Mal Singh and Swaran Singh have improved their version and are materially discrepant in their statements. The discrepancy pointed out by the counsel for the appellant is not minor in nature which can be over looked. When such discrepancy goes to the root of the case, then conviction and sentence on such weak type of evidence cannot sustain. For the reasons recorded above, the appeal is accepted. The appellant is acquitted of the charge by giving him the benefit of doubt. The appellant is on bail. His bail bond and surety bond stand discharged. Appeal allowed.