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2006 DIGILAW 67 (PNJ)

State of Punjab v. Nikka Ram etc.

2006-01-09

HARJIT SINGH BEDI, KIRAN ANAND LALL

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JUDGMENT KIRAN ANAND LALL, J. 1. This appeal has been filed by the State of Punjab against the acquittal of respondents recorded by the lower appellate court, after setting aside the verdict of trial court vide which they were convicted and sentenced under Sections 326 and 323 read with Section 34 IPC. 2. The prosecution case, as disclosed in the statement of Megh Nath complainant (Ex.PD) is that after partition of their abadi land, he and his four brothers had been residing separately. He started utilising his share of this land for keeping his cattle whereas his brother, Harnek Ram respondent, used his share of land for his residence. About 10-12 days prior to the day of occurrence, a quarrel had taken place between them in respect of a ‘wat’ (ridge) of a field, which was, however, resolved through the intervention of panchayat. On 23.11.1989, at about 6.00 p.m., Megh Nath and his wife Krishna Devi were putting fodder to their cattle in their share of abadi land, when an altercation took place between him and his brother Harnek Ram respondent regarding the dispute of ‘wat’. Meanwhile, Nikka Ram, son of their third brother Amar Nath, also came there and started supporting Harnek Ram respondent. He also used bad words for Megh Nath. Harnek Ram respondent exhorted him by saying, “Megh Nath is not abstaining. Pick up the khapra and give a blow with it to him”. On this, Nikka Ram picked up khapra from the house of Harnek Ram, went near Megh Nath, and gave two blows, one from reverse side and other from the right side thereof, on his left arm. The blade of khapra got stuck up in his arm and it had to be pulled out by Nikka Ram. Harnek Ram respondent continued exhorting Nikka Ram, by shouting “mar-mar” (give more blow). Megh Nath and Krishna Devi raised alarm, whereupon the respondents fled away. In the meantime, Megh Nath’s son, Gurcharan Singh, reached the spot and took him to Civil Hospital, Nabha. On receipt of information from the hospital, ASI Dalel Singh reached there and recorded his statement, on 24.11.1989, at 11.00 a.m., which forms the basis of this case. 3. The respondents were, thereafter, arrested, and after completion of investigation, they were challaned. 4. The trial court charged the respondents for the offences under Sections 326 and 323 read with Section 34 IPC. 3. The respondents were, thereafter, arrested, and after completion of investigation, they were challaned. 4. The trial court charged the respondents for the offences under Sections 326 and 323 read with Section 34 IPC. Since they pleaded not guilty to the same, prosecution examined five witnesses viz. PW1 Dr.B.K.Chopra, Medical Officer, PHC Bhadson, PW1 Gurcharan Singh, PW2 Krishna Devi, PW3 Megh Nath, and PW4 Mahinder Singh. (the first two PWs were, inadvertently, given the same PW number viz. PW1) 5. In their statements recorded under Section 313 Cr.P.C., the respondents disputed the correctness of the incriminating evidence put to them and added that they were falsely implicated. Harnek Ram respondent took up the plea of alibi. 6. DW1 Chamkaur Singh SDC, P.S.E.B., Jarag, and DW2 Ram Singh Assistant Lineman, Jarag, were examined in defence. 7. The trial court convicted the respondents but the lower appellate court acquitted them. The State of Punjab, therefore, filed this appeal. 8. We have heard arguments addressed by the learned Additional Advocate General and have also carefully considered the evidence on record. 9. It is settled law that a court of appeal should be very slow in upsetting a verdict of acquittal recorded by the court below. In order to pursuade an appellate court to up set such a verdict, it would have to be shown that the judgment is perverse, and in the event of prosecution’s failure to satisfy this requirement, appellate court has no option but to uphold the acquittal. 10. In the case in hand, the alleged occurrence took place on 23.11.1989 at 6.00 p.m., whereas the FIR was recorded on the next day viz. 24.11.1989, at 11.00 a.m. There was, thus, a delay of 17 hours in the lodging of report. According to the prosecution, the investigating officer had sought the opinion of the doctor on 23.11.1989 at 7.00 p.m., about the fitness of the injured to make a statement but the doctor opined in the negative. Thereafter, the statement of injured was recorded on the next day. But, we do not have the testimony of the investigating officer (ASI Dalel Singh) on record, and in its absence, delay in the lodging of FIR cannot be said to have been satisfactorily explained. As such the possibility that the complainant party had utilised the intervening time in manipulations and concocting a false version cannot be ruled out. 11. But, we do not have the testimony of the investigating officer (ASI Dalel Singh) on record, and in its absence, delay in the lodging of FIR cannot be said to have been satisfactorily explained. As such the possibility that the complainant party had utilised the intervening time in manipulations and concocting a false version cannot be ruled out. 11. Besides, the court of learned Additional Sessions Judge had believed the plea of alibi of Harnek Ram respondent, and the correctness of this plea stood admitted by none else but by Megh Nath complainant (PW3) himself, in the last para of his cross- examination. The relevant portion of his statement is to the effect, “At the time of incident, Harnek Ram was present on his duty. The incident lasted for 2 hours”. The testimony of official witnesses DW1 Chamkaur Singh and DW2 Ram Singh, which is based on official record, also proves that Harnek Ram respondent was present on duty at the complaint centre, from 9.00 a.m. to 5.00 p.m., on 23.11.1989. 12. Another fact which weighed with the first appellate court in discarding the prosecution case is that as per the testimony of PW1 Dr.B.K.Chopra, the injured had arrived in the hospital at 5.20 p.m. and was examined within 10 minutes thereafter, whereas according to the statement of the injured (PW3) himself he had reached the hospital at 7.00 p.m. and was examined at 7.30 p.m. There is discrepancy in prosecution evidence, even about the time of arrival of the police in the hospital. According to PW3 Megh Nath, police came to the hospital at 9.00 p.m., on 23.11.1989, whereas the police application, Ex.PG, shows that police arrived there at some time prior to 7.00 p.m. on that day. The discrepancies in the prosecution evidence about the time of occurrence and that of the arrival of the injured and the police in the hospital indicate that prosecution had, to say the least, tried to give a twist to the correct facts and had not approached the court with clean hands. The fact that the plea of alibi of Harnek Ram respondent also stood proved, further corroborates this conclusion. The lower appellate court had rightly found that once the testimony of prosecution witnesses is found false with regard to the implication of Harnek Ram respondent, it would be unsafe to act upon their testimony qua Nikka Ram respondent, too. The fact that the plea of alibi of Harnek Ram respondent also stood proved, further corroborates this conclusion. The lower appellate court had rightly found that once the testimony of prosecution witnesses is found false with regard to the implication of Harnek Ram respondent, it would be unsafe to act upon their testimony qua Nikka Ram respondent, too. It may also not be out of place to mention here that as per the testimony of the doctor witness (PW1), “injury no.1 can be as a result of a violent fall on a sharp edged weapon such as plough tip made of iron” and “the injury no.2 can be as a result of friendly hand.” 13. For the reasons stated above, we do not find any reason to interfere with the verdict of acquittal recorded by the learned Additional Sessions Judge on the basis of evidence appearing on record. The same is, therefore, upheld and the appeal is dismissed.