DHARAM PAL Vs. STATE

JUDGEMENT

(1.) Pw1, Laxmi Chand lodged a complaint on the basis of which FIR No. 197/1995 under Sections 308/34 IPC was registered at PS Najafgarh against Sahib Singh, Dharam Pal, Anil Kumar and Parvinder Kumar. Pursuant to the trial, the Appellants Dharam Pal and his sons Anil Kumar and Parvinder were convicted for offence under Sections 325/34 IPC and released on probation which period is also over. As the Appellant No. 1 is a government servant he presses the appeal and states that the conviction is illegal and contrary to the facts of law.

(2.) Learned counsel for the Appellants contends that in the Ruqqa, besides the Appellants, PW1 named two other persons, that is, the maternal grandson of Hoshiar Singh, Ravinder and son of Prem Singh, that is, Praveen who were also attributed the same role however, they were not prosecuted and since the Investigating Officer was not examined, the valuable right to cross-examine that witness has been lost to the Appellants. The learned Trial Court after discarding the testimony of two eye witnesses PW2 and PW3, that is, the brother and nephew of PW1 Laxmi Chand the injured however, based the conviction solely on the testimony of PW1 Laxmi Chand and medical evidence. The medical evidence has not been proved in accordance with law as PW7 Dr. Sudhir Bajaj who proved the opinion of Dr. Rajiv Khanna did not produce x-ray plates, nor was a radiologist nor had seen Dr. Rajiv Khanna writing or signing at any time. Thus no conviction under Sections 325/34 IPC could have been passed. PW5 Constable Suresh Kumar who took the Ruqqa admitted that he reached the police station at 7.00 p.m. and in order to cover up the time as FIR was lodged belatedly there is a overwriting in the time from 7.30 p.m. to 8.00 p.m. with regard to dispatch of ruqqa. Since the Investigating Officer, in whose hand writing the ruqqa was sent, has not been examined, the Appellants could not extract the explanation of this overwriting. Despite the fact that it is the case of the prosecution that besides Hoshiar Singh, the father of the Appellant No. 1 and grandfather of Appellant Nos. 2 and 3, two other persons were also playing cards however, they were neither cited nor examined as witnesses. The learned Trial Court rightly discarded the testimony of PW2 Man Singh and PW3 Dinesh Kumar as PW1 Laxmi Chand, the injured Complainant in his testimony had stated that he had not seen Man Singh and Dinesh Kumar, his brother and nephew respectively at the time of incident. The prosecution also failed to explain the injury on Hoshiar Singh, father of Appellant No. 1 and grandfather of Appellant Nos. 2 and 3 which the defence proved by examining DW1 Dr. Deepak Verma. Reliance is placed on Ashok Kumar vs. State, 1994 54 DLT 638 and Abdul Rahim vs. State (Delhi Admn), 2010 168 DLT 636.

(3.) Learned APP for the State on the other hand contends that the case of the prosecution is proved beyond reasonable doubt by the testimony of PW1 Laxmi Chand, the injured witness whose version is corroborated by his MLC which has been duly proved by the doctors who appeared in the witness box. PW1 Laxmi Chand, the injured was suggested that he hit Hoshiar Singh with Lathi thus the presence of PW1 is not doubted. Immediately after the incident, the MLC of PW1 was got prepared and hence the chances of manipulation are totally ruled out. Though the Investigating Officer has not been examined however, PW5 Constable Suresh Kumar, who accompanied the Investigating Officer at every step has been examined, who has deposed regarding the steps taken in investigation. Thus no prejudice has been caused to the Appellants for non-examination of the Investigating Officer. Hoshiar Singh has not filed any complaint against the Complainant/PW1 and in the absence thereof it cannot be said that he was injured in the same transaction and injuries on him have not been explained by the prosecution. PW1 Laxmi Chand, the injured has ascribed the role of each Appellant, thus there is no infirmity in the impugned judgment and the appeal be dismissed.