DEEP CHAND Vs. STATE

JUDGEMENT

(1.) Deep Chand (the appellant) and Harish were arrested in Case FIR No.189/1998 under Section 308/34 IPC registered at Police Station Najafgarh and sent for trial on the allegations that on 28.04.1998 at 02.00 P.M. near 'Park' at Chawla Bus Stand, Najafgarh, they inflicted injuries to Umesh. The police machinery came into motion when Daily Diary (DD) No.63-B (Ex.PW-6/1) was recorded at 04.45 P.M. on getting information from duty Ct.Sunil Kumar at Safdarjang hospital about the admission of Umesh Kumar by his brother Dalip in injured condition. The investigation was assigned to HC Shyambir who with Ct.Baljit went to the hospital and moved an application (Ex.PW4/1) seeking permission to record injured's statement but could not do so as he was declared unfit for statement. He lodged First Information Report after making endorsement (Ex.PW-4/2) on DD No.63-B. During investigation, statements of the witnesses conversant with the facts including that of the injured Umesh were recorded. The accused persons were arrested. After completion of investigation a charge-sheet was submitted against them in the court and they were duly charged and brought to trial. The prosecution relied upon the testimonies of eight witnesses besides medical evidence to bring home the charge. In their 313 statements, the accused persons denied their involvement in the crime and pleaded false implication. DW-1 (Tilak Singh) appeared in defence. After considering the rival contention of the parties and appreciating the evidence on record, the Trial Court by the impugned judgment convicted Deep Chand for committing offence under Section 308 IPC and Harish under Section 323 IPC. By an order dated 02.05.2001 Deep Chand was awarded Rigorous Imprisonment for two years with fine Rs. 500/- . Harish was released on probation. It is relevant to note that Harish did not challenge conviction under Section 323 IPC.

(2.) I have heard the learned counsel for the parties and have examined the record. Appellant's counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and relied upon the sole testimony of injured Dalip Kumar who was in the habit of teasing women folk of the locality and was beaten. No reliance can be placed on his testimony as he did not lodge the report soon after the incident and recorded statement after unexplained delay of three days The crime weapon could not be recovered during investigation and the Investigating Officer did not seize the blood stained clothes of the injured. No independent public witness was associated during investigation. Name of the assailant was not disclosed to the doctor who medically examined the injured. It is not clear as to when the victim was discharged from the hospital. Non-examination of the doctor who declared the victim 'unfit for statement' is fatal. Reliance was placed on Balakrushna Swain v.the State of Orissa, 1971 AIR(SC) 804; G.B.Patel & Anr.v.State of Maharashtra, 1979 AIR(SC) 135; Bijoy Singh & Anr.v.State of Bihar, 2002 AIR(SC) 1949; Devinder v.State of Haryana, 1997 AIR(SC) 454 and Bhagirath v.State of Madhya Pradesh, 1976 AIR(SC) 975. Learned Additional Public Prosecutor supporting the findings urged that there are no sound reasons to discard the testimony of the injured who suffered grievous injuries on vital organ and the testimony has been corroborated by medical evidence.

(3.) There is no challenge to the injuries sustained by the victim. The appellant's only plea/defence is that he was not the author of the injuries and these were caused to him by public at large when as usual, he teased the women folk of the locality. Since he (the victim) nurtured grudge against him for teasing his wife, he was falsely implicated. Umesh was taken to Safdarjang hospital soon after the occurrence by his brother (PW-2) Dalip Kumar who deposed that after coming to know Umesh lying unconscious in the house, he went there and took him to Safdarjang hospital. His testimony remained unchallenged. MLC (Ex.PW-1/1) records arrival time of the patient at about 05.00 P.M. PW-1 (Dr.Manisha) examined the patient at 05.00 P.M. The patient was brought by his brother with the alleged history of assault at around 02.00 P.M. at Najafgarh and hit by wooden stick on the head, face, arm and legs. The following injuries were found on the body: