Som Pal vs State of Haryana

S.S. Sudhalkar, J.

The appellants were accused in Sessions case No. 10/2 of 1986 Sessions Trial No. 24 of 1986 in the Court of learned Additional Sessions Judge, Karnal. By the judgment dated 13.8.86, they were convicted. Appellant No. 1 was convicted for the offences under Sections 326, 325/34 and 323/34 of the Indian Penal Code; appellant No. 2 was convicted for the offences under Sections 326/34 and 323 of the Indian Penal Code and appellant No. 3 was convicted for the offences under Sections 325 and 323 of the Indian Penal Code and they were also sentenced for various terms. Being aggrieved by the said judgment of conviction and sentence, they filed the present criminal appeal.

The original complainant Om Parkash, who was one of the injured persons, has filed a revision application with a prayer of enhancing the sentence awarded to the appellants.

I have heard learned counsel for the parties and perused the record of the case.

Regarding the conviction Mr. Cheema argued that the conviction cannot be sustained while learned Advocate for the State argued to the contrary. The incident had taken place on 7.11.1985 at 7.30 p.m. The complaint regarding the said incident was recorded on 8.11.1985 at 1 p.m. upon which the formal FIR was recorded at 1.15 p.m. on the same day. The case of the prosecution is that about 2 years prior to the incident, appellant No. 1 had made false allegations against the complainant for misbehaving with his wife and the complainant was found innocent and compromise was got effected in the village with each other. Due to that, Som Pal accusedappellant No. 1 had a grudge against the complainant in his mind. At the time of incident when the complainant was standing in the street in front of his Baithak, appellant No. 1 armed with a gandasi and his brother appellant No. 2 armed with a lathi came towards the complainant. Appellant No. 1 said that the complainant should be taught a lesson for misbehaving with his wife and gave a gandasi blow which hit on the left side of the forehead of the complainant. Appellant No. 2 gave a lathi blow on his right foot. The complainant fell down. In the meantime, appellant No. 3 armed with lathi reached the spot and he gave the complainant a lathi blow in his right hand. During the incident Dhanpati and Lokesh, wife and sister respectively of the complainant came there and the appellants also caused injuries to them. It is also stated in the complaint that they also gave simple injuries in selfdefence to the appellants. The complainant thereafter raised an alarm "Mar Dia, Mar Dia" and on hearing his noise, Dharam Pal son of Lal Singh and Pala Ram son of Ajaib Singh reached the spot and they rescued the complainant from the clutches of the appellants. After the incident, brother of the complainant named Ved Parkash took the complainant and his wife to the hospital. The complainant remained unconscious due to the medicines given to him and after gaining consciousness, he made a statement before the police.

The prosecution has examined the following witnesses in this case :

PW 1 Dr. K.L. Sachdeva

PW 2 Dr. P.K. Bhatia

PW 3 Dr. Ravinder Kumar

PW 4 Dr. Ramesh Aggarwal

PW 5 Om Parkash

PW 6 Dhanpati

PW 7 Lokesh

PW 8 Dharmpal

PW 9 Vinod Kumar and

PW 10 HC Om Parkash.

The appellants have also examined two witnesses in their defence, namely, DW 1 Dr. O.P. Miglani and DW2 Tara Chand. The parties have also produced documents and the relevant documents will be considered in the later part of the judgment.

The first point argued before me was that the complaint and the recording of the FIR were belated. The learned counsel for the State argued that the FIR could not be recorded earlier because of the condition of the complainant and also argued that when there was no dispute regarding the presence of the appellants, the delay is immaterial and can be neglected. It is an admitted fact that the incident took place at 7.30 p.m. on 7.11.1985 and that the complaint was recorded at 1.00 p.m. on 8.11.1985 and that the formal FIR was registered at 1.15 p.m. on the same day. The delay, if explained, the explanation will have to be considered but if the delay is not explained, it can be a circumstance against the prosecution. In the complaint, the complainant has stated that he remained unconscious due to the medicines given to him and "now I have got recorded my statement to you". In the examinationinchief the complainant has stated that he was in his senses when he reached the hospital and after getting an injection and taking some pills he lost his consciousness. In the crossexamination he has stated that he has stated that he was not conscious before 10.00 a.m. P.W. 6 Dhanpati wife of Om Parkash complainant has not stated the reasons for not having her complaint recorded promptly, in her examinationinchief. P.W.7 Lokesh has stated in her examinationinchief that she was also taken to the Civil Hospital, Karnal. However, she has not stated in her examinationinchief the reasons of her not lodging the complaint promptly. So far as the injuries received by the complainant, his wife and sister are concerned, the deposition of the doctors will have to be considered. Om Parkash complainant, according to the Dr. Ravinder Kumar PW3, had the following injuries :

5 cm. x cm., skin deep incised wound on the left front parietal area of the skull, 6 cm from the left ear. Bleeding was present. Xray was advised.

Reddish blue colouration of the left upper eyelid.

1 cm x cm reddish abrasion on the left elbow joint with diffused swelling present around it. Xray was advised.

Reddish swelling, tenderness and crepitus of the lower half of the lower forearm (right). Xray was advised.

Patient was complaining of pain in the right shoulder joint. Movements were painful. Xray was advised.

1 cm x cm skin deep lacerated wound on the skin of the right leg, 12 cm below the tibial tuberosity. There was tenderness present. Xray was advised.

Dhanpati wife of Omparkash complainant, according to the said witness had the following injuries :

3 cm x cm skin deep lacerated wound on the vault of the skull. Bleeding was present. Xray was advised.

Reddish contusion over the dorsum of the left wrist joint. Tenderness was present. Xray was advised.

There was swelling, tenderness and deformity of the little finger of the right hand. Xray was advised.

3 cm x 2 cm reddish contusion 5 cm above injury No. 2.

2 cm x 1 cm reddish contusion 6 cm above the right wrist joint.

Lokesh, according to Dr. Ramesh Aggarwal PW 4 had the following injuries :

Lacerated wound (dressed) 2 cm x 1 cm in size on the left frontal region on scalp, clotted blood was present. Xray of scalp was advised.

Right forearm was swollen and tender in area around 3 cm below elbow. It was reddish blue colour. Xray right forearm was advised.

Left forearm was swollen and was tender in middle. Xray of left fore arm was advised.

Bruise 7 cm x 5 cm in size over right shoulder region, reddish in colour.

(sic) has examined her at 12.40 p.m. on 8.11.1985. Dr. K.L. Sachdeva, PW1 had examined Lokesh radiologically on 8.11.1985. He has also examined Om Parkash radiologically on 7.11.1985. On the same day he had also examined Dhanpati. PW2 Dr. P.K. Bhatia had treated Om Parkash from 7.11.1985. Of course learned counsel for the State has drawn my attention to Ex.PE and PF. Ex.PE is written by ASI Ram Piare, Incharge, Police Post, General Hospital, Karnal to the Duty Doctor, Medical Officer, General Hospital, Karnal. Ex.PF is also written by the same ASI to the Duty Doctor, Medical Officer, General Hospital, Karnal. In Ex.PE he has written that Om Parkash has been admitted in the hospital in injured condition and opinion is sought for as to whether he is in a position to make a statement or not. Similarly Ex.PF is regarding Dhanpati wife of Om Parkash. There is an endorsement on both these documents made at 11.55 p.m. on 7.11.1985 that the patients are unfit to make a statement and on Ex.PE/1 and Ex.PF/1 there are endorsements made at 12.30 p.m. on 8.11.1985 by the doctor that the patients are fit to make a statement. From this it can be inferred that till 12.30 p.m. these two injured i.e. Om Parkash and Dhanpati were not in a position to make a statement. The question that, therefore, arises is whether the delay of more than 12 hours in recording and registration of the FIR can be fatal to the prosecution case or not. As mentioned above, the prosecution for the reasons not known, has remained silent as to why ruqqa Ex.PN could not reach the police or the police station earlier, i.e. within 12 hours of its being written. It is the case of the prosecution that Ved Parkash brother of Om Parkash had taken injured Om Parkash and Dhanpati to the hospital. Ved Parkash has not been examined. Another person who could have been an eyewitness, according to the FIR, viz. Pala Ram is also not examined. I shall come to the point of nonexamination of Pala Ram later but nonexamination of Ved Parkash is important because he took the injured to the Hospital and there is nothing to show that he was not in a position to make a statement. It is not the law that FIR has to be lodged by an eye witness only. It could have been lodged by any one else including Ved Parkash. Lokesh was also examined in the hospital on the next day. She was not examined as an indoor patient, though she has stated in her deposition that all the three injured persons were brought to the Civil Hospital, Karnal by her brother Ved Parkash. It is also clear from documents Ex.PE and Ex.PF that Ram Piare was the ASI Incharge, Police Post, General Hospital, Karnal and he is also not examined as a witness of the prosecution.

It is apparent from the record itself that the delay in lodging the FIR has not been explained by the prosecution. Whether the delay is fatal to the prosecution case or not will be considered after considering the other evidence on record. Learned counsel for the appellants has argued that from the side of the accused, appellant No. 3 Rajinder and Som Pal had received injuries in the occurrence. He has read over to me Ex.DA which is a medico legal report of Rajinder appellant which shows that he was examined on 7.11.1985 at 10.15 p.m. and he had three injuries on his body. Out of these three injuries, there was lacerated wound on the vault of skull. Ex.DB is the medicolegal report of Som Pal.

Learned counsel from the appellants has also argued that appellant No. 1 was also injured in the incident and the injuries also said to have been proved vide MLR Ex.DB. Ex.DB shows that appellant No. 1 had two injuries on his body. He was examined on 7.11.1985 at 10.25 pm. The prosecution case is that the injuries were caused to the accused in selfdefence. In the FIR there is a mention that "we also gave simple injuries in our selfdefence". Except this there is no mention about the injuries caused to the above mentioned appellants. In the deposition Om Parkash P.W.5 has stated that his sister Lokesh was carrying a danda and she gave one blow each with it to Som Pal and Rajinder. Specific causing of injuries as mentioned in the deposition has not been mentioned in the FIR and PW5 admitted that he did not state before the police that Lokesh armed with a danda had come to the spot or that she had caused danda blows to Som Pal and Rajinder accused. P.W.6 Dhanpati has stated that her sisterinlaw Lokesh gave a danda blow to Som Pal and Rajinder each. However, it has come out in the crossexamination that when she was confronted with police statement, she has not stated regarding the same. Lokesh PW7 has stated in her deposition that she gave one blow each to Som Pal and Rajinder but it has come out in her crossexamination when she was confronted with the police statement Ex.DD that she has not so stated. Therefore, this theory of causing injuries to appellants Nos. 1 and 3 in self defence is developed subsequently, though initially a basis has been made for the same in the FIR.

The motive part alleged by the prosecution is also important to be considered. Complainant Om Parkash has stated in his deposition that about three years back, Som Pal had made allegations against him that he had teased his wife. It was a false charge. Panchayat was convened and the complainant was found innocent and the matter ended there. He has also stated that at the time of incident, appellant Som Pal shouted that he be taught a lesson for teasing his wife and then gave a gandasi blow on his forehead. It has been argued by learned counsel for the appellants that the motive upon which the prosecution has based its case is a stale incident and the real motive is a different one. Complainant PW5 has admitted in his crossexamination that towards the west of the lane in front of his house, he is in possession of a bara where they make dung cakes. He has denied that appellant No. 1 Som Pal is also in possession of a bara towards north of it. This witness has admitted that there is a ber tree on the boundary of these baras and it is claimed by him as also by the appellant No. 1 as belonging to them. He has also admitted that the appellants wanted to cut that ber tree and a dispute was going on for this for the 15 days prior to the occurrence. He has also admitted that there was a dispute over the cutting of the tree by the accused some 15 days prior to the present occurrence. Therefore, the motive suggested by the prosecution is prima facie a stale one while there is some other motive which has caused dispute between the parties i.e. regarding the ownership of the ber tree and the cutting of the same.

Learned counsel for the appellants further argued that the prosecution is not showing the real place of occurrence and also argued that thereby the prosecution is keeping back the real facts and the facts which are projected are not true. P.W.5 Om Parkash has stated in his crossexamination that blood had fallen at the place of occurrence from the injuries he had received. It is also in evidence that he had fallen on the ground. Naturally bloodstained earth could have been found from the place of occurrence. Surprisingly it can be seen from the deposition of Investigating Officer P.W.10 HC Om Parkash that he did not find any blood on any place in the lane. The fact that Om Parkash must have bled is also corroborated by his injuries. Nonfinding of the blood at the place where the occurrence is alleged to have taken place casts a doubt that the said place may not be the real place of occurrence. The nonfinding the bloodstained earth at the place of occurrence is thus a very important lacuna in the prosecution case. It is not in dispute that the prosecution witnesses had received injuries. However, the manner in which the incident had taken place also assumes great importance in deciding the case. A question also arises as to who was the aggressor and who had received injuries in selfdefence. As observed earlier, two of the accused had also received injuries and with the doubt that is created regarding the change in the place of occurrence, the whole story as put forth by the prosecution becomes doubtful.

Learned counsel for the appellants has cited before me the case of Lakshmi Singh and others v. State of Bihar, A.I.R. 1976 S.C. 2263 wherein it has been held :

"In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court, and yet this is one exceptional case where this procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true."

In the present case also when the blood had fallen on the ground and the bloodstained earth was not found, the defence may also be true.

Learned counsel for the appellants has also cited before me the case of Vijayee Singh and others v. State of U.P., A.I.R. 1990 S.C. 1459. It has been held therein that the burden lies on the accused to prove that his case comes within exceptions. However, it is also held that the burden gets discharged if probability is proved or reasonable doubt about prosecution case is raised. In the present case also, the defence has been able to show that the prosecution case is not free from doubt.

Learned counsel for the State has cited before me the case of Mangat and another v. State, A.I.R. 1967 Allahabad 204 wherein it has been held that if there is great disproportion between number of injuries inflicted on two sides, it certainly indicates that those who inflicted larger number of injuries were likely to be aggressors. This principle could have been considered but in view of the above reasons, in the present case, the prosecution cannot be said to have proved its case beyond reasonable doubt as to how the occurrence took place and the genesis of the occurrence is suppressed and this case cited above is of no use to the prosecution. He has also cited the case of Gurcharan Singh and another v. State of Punjab, AIR 1956 S.C. 460. It has been held therein that where there is a clear positive evidence against the accused, the question of motive is of no importance. However, in the present case, the question of motive has gathered importance because instead of the motive as alleged by the prosecution, there appears to be other dispute between the parties which led to the present occurrence in which injured witnesses have received injuries.

Learned counsel for the State has also cited before me the case of Ghisa and others v. State of Rajasthan, 1976 Crl.L.J. 39. It has been held therein that it is true that the lapse of long period between the date of commencement of trial and hearing of appeal by the High Court is a factor which in the context of a particular case, may, in conjunction with other circumstances, justify the reduction of sentence and this is not an absolute rule justifying interference with the discretion of the trial court in the matter of sentence in every case. This principle does not require consideration when the conviction itself cannot be upheld in the present case.

Considering all the above facts, there is also the delay in filing the FIR and the delay is not satisfactorily explained. The occurrence has taken place at 7.30 p.m. while the FIR has been registered on the next day at 1.15 p.m. It is discussed above there are other persons also in addition to Om Parkash and Dhanpati who could have lodged the complaint before the Police, and the ASI posted in the hospital also could have taken steps in getting the complaint regarding the incident recorded. This is not done. This also goes to show that the prosecution witnesses had ample time to mould the story which will suit them. In view of the above discrepancies, the delay not only adds to the weakness of the prosecution case but can also be said to be fatal to the prosecution case.

My above view is supported by the case of Meghraj Singh v. State of Uttar Pradesh, 1994(2) RCR 626. In the said case the Apex Court has observed that :

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story."

In the case of Malkiat Singh v. State of Punjab, 1997(1) RCR 503, the delay being about 12 hours in reporting the matter to the police and further delay of about 4 hours to send special report to the Ilaqa Magistrate was held to be fatal to the prosecution case and it was also held that it was used by the prosecution for due deliberations and consultations in order to name someone as the culprits in this case.

There are also other omissions shown to me by learned counsel for the appellants. Though these omissions have been proved by having been brought on record, they are not material omissions to be considered. However, in view of the above reasons, it is not possible to accept the case of the prosecution to hold that the injured received injuries in the way the prosecution wants to project. This being so, the appellants are entitled to benefit of doubt. Nonexamination of Pala Ram and Ved Parkash adds to the doubts regarding prosecution story.

As a result, this appeal is allowed. Conviction and sentence against the appellants are set aside. The bail bonds of the appellants stand cancelled. The fine, if paid, is ordered to be refunded. The appellants stand acquitted of the charges levelled against them.

Consequently, the Criminal revision petition No. 1409 of 1986 does not survive and is also dismissed.