State of Punjab vs Binda and others

Sat Pal, J. (Oral)

This appeal has been preferred by the State against the judgment dated 12th April, 1989 passed by JMIC, Nawanshahr. By this judgment the learned trial court has held that the prosecution has failed to bring home the offence against the accused beyond reasonable doubt and accordingly all the accused were acquitted.

Briefly stated, the case of the prosecution is that one Jito resident of village Dosanj Khurd was going to her Haveli for tethering her buffalo in the morning of 21.9.1986 and when she was passing near the house of Sohan (respondentaccused) she was abused by Binda respondent. Accused Binda said that they would teach a lesson as a complaint has been filed against them. It is further alleged that in the meantime Chinda alias Gurmej Singh son of Parkasha who was armed with a Daat and Sohan son of Karma who is his uncle and was armed with Gandasi gave blows on the right arm and back of the complainant Jito. It is further alleged that after alarm was raised, two Devranies (wives of Jito''s husband''s younger brothers) Gian Kaur wife of Reshan Chand and Saron wife of Joginder Singh reached there and rescued the complainant. It is then alleged that thereafter the accused persons ran away from the spot with their respective weapons.

The injured Jito was taken to Civil Hospital Banga which is at a distance of about 3 kms from the village and in the hospital she was examined by Dr. Kavinder Sood (PW2). After examination, PW2 found the following injuries on the person of complainant Jito :

"3.5 cm x 1/2 cm x 1/4 cm incised wound over the dorsum of right forearm transversely placed 6 cm below the elbow joint.

(Advised xray).

5 cm lenier reddish abrasions oliquely placed over the palmer aspect of left forearm. 3 cm below the palmer aspect of left wrist joint.

22 cm x 2 reddish brownish bruise over the right side of back of chest. 5 cm below the angle of right scapulla. The bruise is vertically placed.

12 cm x 3 cm reddish bruise obliquely placed over the left side of back of chest. 12 cm below the angle of left scapulla.

5 cm x 1 cm reddish bruise over the spine of left scapulla."

Injury No. 1 was kept under observation and on the receipt of xray report, it was declared as grievous in nature. The xray was conducted by PW1 Dr. Paramveer Kaur Virk.

It is further the case of the prosecution that statement of injured Jito was recorded by HC Malkiat Singh (PW8) in the hospital on 21.9.1986 itself. The said HC entered a report in the Daily Diary Register under Section 24.4 Police Rule to seek the advice of SHO Police Station Banga, Mahinder Pal Singh (PW3). Thereafter the matter was inquired into by the said SHO and on his direction FIR was recorded on 13.10.1986 at 5.00 p.m. on the basis of the statement of Jito which was recorded on 21.9.1986 as stated herein above. After the investigation was completed, challan was filed under Sections 326/323/34 IPC against all the three accused namely Binda, Chinda @ Gurmej Singh and Sohan Lal.

The prosecution examined eight witnesses to sustain its case. PW1 Dr. Paramveer Kaur Virk proved xray report Ex. PA/1 of the injured. PW2 Dr. Kavinder Sood proved the MLR of the injured. PW3 Mahinder Pal Singh who was SHO, Police Station Banga at the relevant time proved that after enquiry he got the case registered at the police station against the accused. PW4 Jito (injured) and PW5 Giano are the eye witnesses, who have proved the ocular version of the case. PW6 ASI Harbhajan Singh was the investigating officer who has proved the investigation of the case. PW7 ASI Gurdeep Singh who also partly investigated the case has proved that part of the case which was investigated by him. PW8 HC Malkiat Singh in his examinationinchief has proved the initial statement of the injured which according to him was recorded by him on 21.9.1986. The evidence of this witness has however not been relied upon by the learned trial Court as this witness was not made available by the prosecution for his crossexamination.

The learned trial Court by the impugned judgment dated 12.4.1989 has held that there are material discrepancies in the statements of both the eye witnesses PW4 and PW5 and even the ocular version has not been fully corroborated by the medical evidence. It has also been held by the learned trial Court that statement of PW8 Malkiat Singh cannot be given any weight as he was not produced by the prosecution for his crossexamination. In view of these facts, the learned trial Court has held that the prosecution has failed to bring home the offence against the accused beyond reasonable doubt and accordingly has acquitted all the accused.

Mr. Dhaliwal, learned Deputy Advocate General appearing on behalf of the State has drawn our attention to the impugned judgment and has submitted that the findings of the learned trial Court that there are material discrepancies in the statements of both the eye witnesses, are perverse inasmuch as no fact whatsoever has been given about the alleged material discrepancies. He further submits that though the learned trial court has held that ocular version is not fully corroborated but again no reason about the said finding has been given by the learned trial Court. He further submits that there are two eyewitnesses in the case i.e. PW4 and PW5 and these two eyewitnesses have clearly proved the case of the prosecution. He, therefore, contends that the judgment of the learned trial Court is liable to be set aside.

None has appeared on behalf of the respondents though the respondents have been duly served.

We have been our thoughtful consideration to the submissions made by the learned DAG and have carefully perused the trial Court records. We agree with the learned DAG that the learned trial Court has not given any fact or reason with regard to the finding that there are material discrepancies in the statements of both the eye witnesses nor it has given any fact or reason with regard to the finding that ocular version is not fully corroborated. We, however, are of the considered opinion that the impugned judgment does not call for any interference for the reasons given hereinafter.

Admittedly, in the present case the occurrence took place on the morning of 21.9.1986 and the FIR was recorded on 13.10.1986 i.e. after a lapse of about 22 days from the date of occurrence. The only explanation given by the prosecution is that on 21.9.1986 itself, the statement of the injured was recorded by HC Malkiat Singh vide DDR entry No. 19 dated 21.9.1986 (Ex. PD). But the said entry and the alleged statement recorded by HC Malkiat Singh PW8 cannot be relied upon because the said DDR entry and the statement of the injured have not been proved as HC Malkiat Singh was not made available by the prosecution for crossexamination. Even otherwise we fail to understand that once HC Malkiat Singh had recorded the statement of the injured on 21.9.1986 and referred and matter to SHO, as to how the SHO could not take a decision for a period of 22 days with regard to the recording of FIR. The procedure followed by the SHO by taking this long period of 22 days is contrary to law and is also contrary to the judgment of the Hon''ble Supreme Court in the case of Haryana State v. Ch. Bhajan Lal, 1991(1) RCR (Crl.) 383 : AIR 1992 SC 604. We hope that the State shall ensure that such kind of mistakes are not repeated by the police officers in future. From these facts it is thus clear that there is unexplained substantial delay in recording the FIR in this case and because of this substantial delay the benefit has to be given to the accused respondents.

Even on another ground we find that this is not a fit case to interfere with the judgment passed by the learned trial Court. PW4 complainant (injured) in her statement before the learned trial Court has stated that the occurrence took place in less than one minute and it was witnessed by her sistersinlaw (Devranis) Giano alias Gian Kaur and Saron. But in her crossexamination she stated that Giano and Saron were in the house of Saron when the occurrence started and on hearing her Raula they came to the place of occurrence. She further stated that accused had run away after inflicting injures on her when Saron and Giano came to the spot. It is not understood as to how the occurrence with regard to inflicting of injuries by the accused could have been witnessed by Giano and Saron when according to the complainant herself they and come to the spot after the injuries had already been inflicted. Similarly PW5 Giano in her examinationinchief stated that she and Saron had witnessed the occurrence when the injuries were being caused to Jito by the accused. But in her crossexamination she has also submitted that it took her and Saron five minutes to reach the place of occurrence from the house of Saron whereas as per the statement of PW4 Jito, the occurrence took place in less than one minute. In view of these material discrepancies we are of the considered view that the prosecution has failed to bring home the offence against the accused beyond reasonable doubt.

In view of the above discussion, we do not find any merit in this appeal and accordingly the appeal is dismissed.

We also direct that a copy of this judgment be sent to the Director General Police, Punjab Chandigarh for necessary action.