Punjab-Haryana High Court
Rajvir Singh And Anr vs State Of Punjab on 1 June, 2023
Neutral Citation No:=2023:PHHC:080882-DB
Neutral Citation No.2023:PHHC:080882-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Cr. Appeal-S-3331-SB of 2017 (O&M)
Date of Decision: 01.06.2023
Rajvir Singh and another ... Appellants
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MRS. JUSTICE MANISHA BATRA
Argued by: Mr. R.S. Athwal, Advocate,
for the appellants.
Mr. Alankar Narula, Assistant Advocate General, Punjab.
***
MANISHA BATRA, J.
1. The aforementioned appeal has arisen out of judgment of
conviction and order on quantum of sentence both dated 22.08.2017
passed in Sessions Case bearing CIS No.98 of 2015 titled as State v.
Jaivir Singh alias Deepu and another, registered vide FIR No.77 dated
02.12.2013 under Sections 307, 323, 324, 148 and 149 of IPC at Police
Station Garhdiwala, District Hoshiapur, Punjab whereby accused Jaivir
Singh and Rajvir Singh were acquitted by the Court of learned
Additional Sessions Judge, Hoshiarpur for commission of offence
punishable under Section 307 of IPC but were held guilty and convicted
under Sections 324 and 326 of IPC. They were sentenced to undergo
rigorous imprisonment for a period of three years for commission of
offence punishable under Section 326 of IPC and were directed to pay a
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fine of Rs.15,000/-. In default of payment of fine, they were sentenced to
undergo rigorous imprisonment for a period of two months. The accused
were further sentenced to undergo rigorous imprisonment for a period of
one year for commission of offence punishable under Section 324 of IPC.
Feeling aggrieved from the findings of their guilt for commission of
offences punishable under Sections 324 and 326 of IPC, the accused Rajvir
Singh and Jaivir Singh preferred the present appeal.
2. For the sake of convenience, the parties shall be referred to as
per their original nomenclature as given at the time of trial.
3. The broad contours of the case as set up by the prosecution are
that on 30.11.2013, on receipt of an information regarding admission of the
complainant Shiv Dayal in Community Health Centre, Bhunga (for short
"CHC, Bhunga") due to injuries sustained in some altercation, a police party
headed by ASI Daljit Singh reached there. The injured had been referred to
some higher Centre and information was received that he had been admitted
in Joshi Hospital, Jalandhar. On 01.12.2013, ASI Kewal Krishan moved an
application before the concerned doctor for seeking opinion regarding
condition of the injured for the purpose of recording his statement.
However, the injured was opined to be unfit to make any such statement.
His statement was then recorded on 02.12.2013. The complainant alleged
that on 30.11.2013 at about 11:30 AM, he was going from K.C. Complex
towards Life Care Hospital, Village Gardhiwala and when he reached near
the shop of one Avtar Singh, suddenly two motor bikes reached there from
the opposite side. Accused Rajvir Singh @ Raja and Jaivir Singh were
occupants of those motor bikes along with three unidentified youths. All of
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them were armed with weapons and on seeing the complainant, they
stopped their vehicles and at once opened an attack upon him with an
intention to kill him. The accused Jaivir Singh struck blows with datar on
the person of the complainant thereby injuring his little and ring finger of
left hand. Accused Rajvir Singh struck blows with kirpan on the
complainant thereby causing several injuries on different parts of his body.
The three unidentified youths also assaulted the complainant by striking
blows with iron rods and baseball bats. The complainant raised rescue alarm
on hearing which, his wife Smt. Santosh Kumari rushed towards the spot.
His son Ganesh Kumar also reached there and got him admitted in CHC,
Bhunga and thereafter he was admitted at Joshi Hospital, Jalandhar. The
complainant alleged that there was dispute qua some land between him and
Pargat Singh, father of the accused who used to keep on threatening him to
occupy the said land though there was a decree in his favour. On the basis
of his statement and as per the medico legal report, a case under Sections
307, 323, 324 and 148 read with Section 149 of IPC was registered.
Investigation proceedings were initiated. During investigation, both the
accused were found to be innocent. However, subsequently SIT was formed
who also inquired into the matter and thereafter, the accused Jaivir Singh
was arrested. After completion of necessary investigation and usual
formalities, challan under Section 173 of Cr.P.C. was presented against him.
The case was committed to the Court of Sessions and the accused Jaivir
Singh was charge-sheeted for commission of offence punishable under
Section 307 of IPC. During the course of trial, an application under Section
319 of Cr.P.C. had been filed by the prosecution which was allowed and
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accused Rajvir Singh was arraigned as an additional accused and was
summoned as such. Supplementary challan was presented against him in the
Court after completion of investigation. The copies of challan were supplied
to him and the case was committed to the Courts of Sessions.
4. On finding a prima facie case for commission of offences
punishable under Section 307 and 324 read with Section 34 of IPC, both the
accused had been charge-sheeted accordingly. They pleaded not guilty to
the charges and claimed trial.
5. To substantiate its case, the prosecution examined as many as
eight witnesses. PW-1 ASI Kewal Krishan deposed about joining the
investigation on 30.11.2013 and conducting investigation w.e.f. 01.12.2013
till culmination of entire investigation proceedings and proved the steps
taken by him during the course of the investigation leading to collection of
entire incriminating evidence justifying the prosecution of the accused for
committing the subject offences. He proved the various documents prepared
during the course of investigation. PW-2 Santosh Kumari, wife of the
injured deposed in support of the allegations in the FIR. PW-3 Shiv Dayal
injured also deposed in support of the statement as recorded by him before
the police on the basis of which FIR was registered. PW-4 Dr. Jatinder had
conducted medico legal examination of the injured complainant at CHC,
Bhunga on 30.11.2013. He proved medico legal report, pictorial diagram
and intimation sent to the police. He also deposed about examining the
medico legal report of the complainant while being member of a Board
constituted for the purpose on 20.10.2014 and proved report Ex.PW4/D.
PW-5 Dr. Jaswinder Singh tendered affidavit Ex.PW5/A affirming therein
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that on 20.10.2014, SMO Incharge, Civil Hospital, Hoshiarpur namely
Doctor Vinod Sarin had formed a Board comprising of himself, Doctor
Jatinder, Doctor Upkar Singh and Doctor Hardeep Singh as per orders of
Civil Surgeon, Hoshiarpur on an application moved by Doctor Jatinder for
declaration of nature of injuries of the complainant as shown in his MLR
dated 30.11.2013. He proved opinion given by him along with other
members of the Board as Ex.PW4/D. PW-6 HC Avtar Singh was a formal
witness. PW-7 Dr. Mukesh Joshi of Joshi Hospital tendered affidavit
Ex.PW7/A affirming therein that the injured complainant was admitted in
the hospital on 30.11.2013 and proved his treatment record. PW-8 Hardeep
Singh, Draftsman deposed about preparing scaled site plan of the place.
6. Statements of accused were recorded under Section 313 of
Cr.P.C. wherein they abjured their guilt and claimed themselves to be
innocent. They also took the plea of alibi.
7. In defence evidence, the accused examined six witnesses,
namely, DW-1 Balvir Singh, DW-2 Dilbagh Singh, DW-3 HC Tarsem
Singh, DW-4 Gurdit Singh and DW-6 Inspector Narinder Singh. The
accused Rajvir Singh himself appeared as DW-5.
8. After appreciating the evidence produced on record and hearing
the contentions of both the sides, the learned trial Court acquitted the
appellants-accused of the charge framed under Section 307 of IPC but held
them guilty under Section 324 and 326 read with Section 34 of IPC and they
were sentenced in the manner as mentioned above.
9. Learned counsel for the appellant-accused argued that the
impugned judgment of conviction and order on quantum of sentence were
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liable to be set aside as the findings as given by learned trial Court were not
sustainable in the eyes of law being based on conjectures and surmises. The
learned trial Court did not apply its judicious mind. There was inordinate
delay of more than 53 hours in lodging of the FIR but it had not at been
satisfactorily explained and this proved that the FIR was lodged after
making due deliberations to falsely implicate the accused with whom the
complainant was already having an enmity. The learned trial Court ignored
the fact that at the time of his admission at CHC, Bhunga, the complainant
had recorded that he was assaulted by some unknown persons and had not
named the accused as assailants. PW-2 Santosh Kumari was proved to be a
planted witness in order to lend support to the version of the complainant.
No explanation had come forward as to why even her statement had not
been recorded till 02.12.2013 though she claimed to be an eye-witness.
There were material inconsistencies and infirmities in the statements of PW-
2 Santosh Kumari and PW-3 Shiv Dayal. There was no independent
corroboration to the statements of these witnesses though it had come on
record that Avtar Singh a person having shop in the neighbourhood of the
alleged place of occurrence had come to the spot at the time of the
occurrence and several other persons had also gathered but none of them
was tried to be joined as witness which created a serious dent in the
prosecution story.
10. It was further argued by learned counsel for the appellant that
the medical evidence was at variance with the oral evidence of the witnesses
and hence could not be relied upon. Neither the X-ray report nor the X-ray
films had been produced on record to prove that the injured had sustained
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any grievous injury. The prosecution had implicated the accused on the
allegation of having caused grievous injuries to the injured on the basis of
oral statements of the doctors which could not be relied upon for the
purpose. Even the name of the radiologist who had conducted radiological
examination of the injured had not been cited in the list of witnesses nor he
had been examined due to which the factum that the injured had sustained
any grievous injury had become doubtful. Neither any weapon of offence
nor the vehicles allegedly used in the commission of the subject crime were
got recovered at the instance of the accused. No investigation whatsoever
had been conducted as against the unidentified youth who allegedly
accompanied the accused at the time of occurrence. The place of
occurrence had not been established beyond doubt. It was further argued
that the presence of appellants-accused had not been established at the place
of occurrence at all. The learned trial court had wrongly disbelieved the
plea of alibi as set up by them and thereby committed a grave error. With
these broad arguments, it was submitted that the impugned judgment and
order were liable to be set aside, the appeal deserved to be accepted and that
the appellants deserved to be acquitted of the charges for which they had
been held guilty and convicted.
11. It will not be out of place to mention here that though the
complainant had filed a separate appeal aggrieved from the acquittal of the
accused for commission of offence punishable under Section 307 of IPC but
the said appeal has been dismissed in default for want of prosecution on
09.05.2023. The learned Assistant Advocate General, Sh. Alankar Narula,
while refuting the various contentions raised by learned counsel for the
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appellants-accused and by submitting that the appeal was devoid of any
merits, urged that the same was liable to be dismissed.
12. We have heard learned counsel for the appellant and learned
Assistant Advocate General at considerable length and have carefully gone
through the evidence available on record with their able assistance.
13. So far as the factum of sustaining injuries by the complainant
as shown in the medico legal report Ex.PW4/A as on 30.11.2013 is
concerned, the evidence of prosecution has remained uncontroverted. With
regard to the nature of these injuries, we would make discussion in the later
part of this judgment. The case as set up by the prosecution is that these
injuries were voluntarily caused by the appellants-accused to the
complainant injured due to their previous enmity with each other over some
land dispute whereas according to the appellants accused, the complainant
had sustained injuries at the hands of some unknown persons and had
falsely implicated them due to the reason that they were having inimical
relations due to property dispute. Both the parties have attributed motive to
each other for causing injuries and for falsely implicating respectively.
Therefore, the main question that crops up for consideration before this
Court is as to whether it were the appellants who had assaulted the
complainant on 30.11.2013 and had caused injuries as shown in the MLR,
on his person? Learned counsel for the appellants has assailed the findings
given by learned trial Court on several grounds. Let us firstly consider the
contention that there was inordinate and unexplained delay of 53 hours in
lodging of FIR. As per the prosecution case itself, the occurrence had taken
place on 30.11.2013 at about 11:30 AM and immediately thereafter the
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injured Shiv Dayal had been taken to CHC, Bhunga and from there, he was
referred to Civil Hospital, Hoshiarpur but was got admitted at Joshi
Hospital, Jalandhar. FIR was lodged two days thereafter i.e. on 02.12.2013
at 4 PM. It is well settled proposition of law that the FIR in a criminal 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 eye-witnesses if known to the informant. Delay in lodging the FIR quite
often results in embellishment which is a creature of afterthought. On
account of delay, report not only gets bereft of the advantage of spontaneity,
but danger also creeps in of the introduction of colour version, exaggerated
account or concocted story as a result of deliberation and consultation (See:
Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501; Satpal Singh v.
State of Haryana, (2010) 8 SCC 714; Kishan Singh v. Gurpal Singh,
(2010) 8 SCC 775; Jai Parkash Singh v. State of Bihar, (2012) 4 SCC 379
and Manoj Kumar Sharma and others v. State of Chhattisgarh and
another, (2016) 9 SCC 1).
14. It is also well settled proposition of law that a delayed First
Information Report gives rise to suspicion and puts the Court on guard to
look for a plausible and acceptable explanation for the delay. The First
Information Report is a document of considerable importance. This
document is produced and proved in the criminal trial with the avowed
object of obtaining the early information of the alleged criminal activity and
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to have a record of the circumstances before there was time for them to be
embellished or forgotten. A quick information report is a towering
circumstance that goes a long way to assure the veracity of the prosecution
story as in such cases, there cannot be any time to create and deliberate a
false case against the accused. Applying the above discussed proposition of
law to the present case, it is revealed that no satisfactory explanation has
come forward with regard to delay of 53 hours in reporting the matter to the
police. It is proved from the testimony of PW-4 Dr. Jatinder before whom
the injured was brought at CHC, Bhunga immediately after the incident, that
the injured was conscious, well oriented to time and place, when he had
been brought there. From the treatment record prepared by Joshi Hospital,
Jalandhar also, it is revealed that he was fully conscious when he had been
brought therein. ASI Daljit Singh who had taken over the investigation of
the matter on 30.11.2013 had been examined as a witness and, therefore, no
explanation could come from him to show as to why he did not record the
statement of the injured on that very day. As per prosecution case, on
01.12.2013, the second Investigating Officer ASI Kewal Krishan had moved
application for seeking opinion regarding condition of the injured who was
opined to be unfit to make statement and that is why the statement of the
victim was recorded on 02.12.2013 but when we go through the testimony
of PW-1 ASI Kewal Krishan, this version stands totally belied because he
stated that he had moved application Ex.PD to the doctor of Joshi Hospital
for obtaining opinion as to fitness of injured on 01.12.2013 itself and had
recorded his statement Ex.PE on that very date though contrary to this, the
application Ex.PD is shown to be moved on 02.12.2013 and Ex.PE was also
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recorded on that date. This shows that this witness was not speaking the
truth. It may also be mentioned that as per the prosecution case, even PW-2
wife of the victim was an eye-witness to the occurrence. Then why her
statement could not be recorded by the Investigating Officer till 02.12.2013
has remained a mystery which has not been unfolded by any witness.
Neither the Investigating Officer nor PW-3 who was the most important
witness of the case could give any explanation whatsoever as to why the
delay of 53 hours had occurred in giving the formal information about the
incident to the police and disclosing the names of the culprits involved in
the act of assaulting the accused and this fact, in our opinion had created a
serious dent in the prosecution story as well as veracity of the version of
PW-3 but the learned trial court had failed to take the same into
consideration.
15. Dilating further, on the minute scrutiny of evidence available
on record, we are of the opinion that due to delay in reporting the matter to
the police, some other lacunas have also been created in the case of the
prosecution which the learned trial Court failed to take note of. PW-4 Dr.
Jatinder had conducted medico legal examination of the injured on
30.11.2013 at about 12:15 PM i.e. immediately after the incident. In his
report, Ex.PW4/A while mentioning history of injuries, it was recorded that
the victim was assaulted by unknown persons. In his sworn deposition, this
witness categorically deposed that it was on the information as given by the
victim himself that he had recorded in the MLR that the assailants were
unknown persons. He was not at all controverted on this point. More so, he
was independent and disinterested person who had no reason to make any
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false statement. Therefore, his statement can certainly be acted and relied
upon completely to prove that at the time of his admission in CHC, Bhunga,
the complainant had disclosed that he was assaulted by some unknown
persons. Admittedly, the appellants accused were already known to the
complainant and his wife. If that was so, then what was the hitch for them to
not to disclose the names of the accused as assailants at the very first
instance to the doctor or immediately to the police, has remained
unexplained on the part of PW-2 or PW-3. From this, it can reasonably be
inferred that the names of the present appellants had been introduced later
on by the complainant after making deliberations, concoctions and in
connivance with his family members to implicate them falsely in this case
because of the reason that their relations were already inimical and that is
why a delay of 53 hours had taken place for the complainant to lodge formal
FIR in this case and due to this fact also, a doubt has been created over the
truthfulness of the version of the prosecution as well as of PW-2 and PW-3
and the benefit of which should certainly have been to the appellants which
was not so given by learned trial Court.
16. One more argument had been raised by learned counsel for the
appellants that the case rested upon the singular statement of PW-2, which
had in fact not been corroborated by any other evidence as PW-2 Santosh
Kumari was proved to be a planted witness and no other eye-witness had
been examined. Therefore, he urged that the uncorroborated testimony of
PW-2 could not be relied upon. Learned trial Court had also observed that
presence of PW-2, Santosh Kumari, who claimed to be an eye witness had
in fact not been proved. Though Pw-2 Santosh Kumari deposed about eye-
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witnessing the occurrence but her statement stands falsified from the
testimony of PW-3, Shiv Dayal, who stated that PW-2 had reached at the
spot after he had raised alarm. Further, though it was stated by PW-2, that
some persons had gathered at the spot at the time of occurrence but none of
them had been examined. As such, the case of prosecution mainly rests
upon the testimony of PW-3, i.e. Complainant, injured only. No doubt the
well settled proposition of law is that as a general rule, the Court can and
may act upon the testimony of a single witness and there is no legal
impediment in convicting the accused on the solitary statement of a witness
provided the same is wholly reliable. Evidence of an injured witness must
be given due weightage because being a stamped witness, his presence
cannot be doubted. The testimony of such a witness has its own relevance
and efficacy, as he has sustained injuries at the time and place of occurrence
and this lends support to this testimony that he was present during the
occurrence and normally he would not like to let the actual assailant go
unpunished. However, it is equally well settled that if there are major
contradictions or infirmities in the testimony of such witness, the same
cannot be considered as creditworthy. As already discussed, the testimony
of PW-3 has become doubtful due to the reason that the same was recorded
before the police after a gap of 53 hours thereby leaving scope for making
deliberations, concoctions, exaggerations and creation of false story.
Moreover, as already discussed, at the time of his admission at CHC,
Bhunga, he had disclosed that he was assaulted by unknown persons and
had not named the appellants. In such circumstances, when the case of the
prosecution with regard to the occurrence rests upon the solitary statement
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of the complainant which itself cannot be considered to be creditworthy, in
our opinion the appellants-accused could not be held guilty on the basis of
his statement which in the circumstances of the case, did not inspire
confidence for connecting the accused with the subject crime.
17. Yet another circumstance which has also created doubt about
the veracity of the prosecution version is that as per the allegations, the
appellants-accused along with three unknown persons had opened assault
upon the complainant on 30.11.2013 and while they had caused injuries to
him with datar and the kirpan, the unknown persons had caused injuries to
him with baseball bats and iron rods and he had sustained simple as well as
grievous injuries. PW-4 Dr. Jatinder who had conducted medico legal
examination of the injured complainant on 30.11.2013 deposed that the
injured had sustained three grievous injuries in the form of incised wounds
in left ring finger, right knee and left foot and some abrasions. PW-7 Dr.
Mukesh Joshi proved treatment record of the victim Ex.PW7/C and the
injury report which is part of that record shows that four injuries which were
grievous in nature and fractures on medial femoral condyle oblique, patella
right and compound comminuted fracture proximal phalanx (left) ring
finger were found on the person of the complainant. The learned trial Court
had observed that though some of the injuries were grievous in nature but
since they were not on vital parts of the body and hence could not be
considered as dangerous to life and had accordingly, it had held the accused
guilty for commission of offences punishable under Sections 324 and 326 of
IPC. It has, however, been noticed that neither the specific fracture reports
and X-ray films have been produced in evidence nor even the radiologist
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who had taken the X-ray films and had prepared the report that the
complainant had sustained grievous injuries, had been examined. It is well
settled principle of law that the X-ray taken by the radiologist to sustain the
nature of the injury must be produced and proved before a Court of Law and
that the evidence given by the Radiologist, the gravity and the nature of the
injury has to be subscribed as clearly laid down under Section 320 of IPC.
Reliance in this regard can be placed upon the case reported as
Nallasingam and others v. State, 1993 (1) M.L.J. (Criminal) 6 wherein the
injured had claimed that he had sustained fracture in the bone. In the
absence of the X-Ray film and the testimony of some doctor, it was held by
the High Court of Madras that grievous injury was not proved by proving
X-ray film and X-ray report on record which could specifically point out
that the victim had actually suffered a fracture in the bone in order to bring
the case under the requirement of Section 320 of IPC. Reliance can also be
placed upon Gurpreet Singh v. State of Punjab, 2019 (2) Law Herald
1018, wherein the opinion of doctor was based on report of a Radiologist
who was not produced before the Court. Even the X-Ray film on the basis
of which the injury was opined to be grievous in nature, was not produced
on record. A Coordinate Bench of this Court had held that opinion of
another doctor based on the report of Radiologist could not be taken to
prove the guilt of the accused under Section 325 of IPC. Similarly in
Santoo v. State, 1976 SCC OnLine All 267, X-ray report of injury caused
to the complainant was prepared by "A". The prosecution did not produce
"A" before the Court. It was also not suggested that "A" was either dead or
not available. A supplementary report was prepared by "B" on the basis of
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report prepared by "A". It was held by High Court of Allahabad that report
of "A" was inadmissible in evidence and the evidence of "B" based on
supplementary report of "A" was also inadmissible in evidence. Reliance
can also be placed upon Faizan Ahmed Abdul Wahab Shah v. State of
Maharashtra, 2014 (1) Bombay C.R. (Criminal) 643, wherein it was
observed by High Court of Bombay that there could not be any presumption
that grievous hurt was caused without formal proof of fact of fracture. The
fact of existence of fracture could not be diagnosed and certified in the
absence of proof of X-ray plates, unless the fact of fractured bones was
perceivable barely on perception by naked eyes and sheerly by clinical
examination. It is being vivid and palpable. On applying the ratio of law as
laid down in the above cited authorities to the peculiar facts and
circumstances of the present case, it has been observed that though both
PW-4 and PW-7 had deposed that the complainant had sustained grievous
injuries on his person but neither of them had conducted radiological
examination of those injuries. PW-4 deposed that on examination of medico
legal report and bed head ticket of Joshi Hospital, they had opined on
25.10.2014, that three injuries found on the person of the injured
complainant were grievous in nature. He stated that no radiological
examination of the complainant was done at Civil Hospital, Bhunga but
there was a suspicion of fracture of leg at that time. Further, in the evidence
led by PW-7 Dr. Mukesh Joshi, it has nowhere come that he himself had
conducted radiological examination of the injuries on the person of the
injured which were opined to be grievous in nature neither this witness
could produce X-ray report or X-ray film of the injured on record. In the
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absence of examination of the doctor who had conducted radiological
examination of the victim and further in the absence of specific X-ray
reports and X-ray films, no conclusion could obviously be drawn that the
injuries which were opined to be grievous were in fact so in nature and were
falling within the definition of Section 320 of IPC. Since while recording
the findings of the guilt of the accused for commission of offence
punishable under Section 326 of IPC, these facts had not been taken into
consideration by learned trial Court at all, therefore, in our opinion, the
findings as given by learned trial Court on that point cannot be stated to be
sustainable in the eyes of law as the most essential requirement for holding
the appellants-accused guilty for commission of offence punishable under
Section 326 of IPC i.e. their having caused grievous injuries by them to the
complainant has not been proved.
18. There is one important circumstance creating a doubt over the
credibility of prosecution version. The rough site plan Ex.PG of the place of
occurrence had been prepared by ASI Kewal Krishan on 02.12.2013. He
deposed that he had prepared this site plan after visiting the spot, but it was
not deposed by him as to on whose identification, he had prepared the same.
In this site plan, he is shown to have specifically marked the place wherein
the accused had opened an attack upon the victim and had assaulted him
and also the place where eye-witness Santosh Kumari was present. PW-1
being injured was obviously not in a position to accompany the
Investigating Officer to identify the place of occurrence on 02.12.2013. PW-
2 did not say that she had identified the place of occurrence in the presence
of the Investigating Officer. The opinion recorded in the index of this site
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plan Ex.PG has not been proved either by PW-1 or PW-2. It is well settled
proposition of law that any information derived from the witnesses during
investigation and recorded in the index of a map must be proved by the
witnesses concerned and not by the Investigating Officer. Since in this case,
the information as to the identification of place of occurrence is sought to be
proved by the evidence of PW-1 only, the same manifestly offends against
the provisions of Section 162 of Cr.P.C. and cannot be considered to be
admissible, in our opinion. In this regard, reliance can be placed upon case
reported as State of Rajasthan v. Bhawani and another, (2003) 7 SCC
291, wherein the Investigating Officer had prepared site plan on the basis of
statements given by the witnesses. Many things mentioned in the site plan
had been noted by the Investigating Officer on the basis of statements of
such witnesses. It was held by the Hon'ble Supreme Court that what the
Investigating Officer personally saw and noted alone would only be
admissible in evidence and rough sketch prepared by him on the basis of
statements made to him by the witnesses showing the place where the
deceased was hit and also the places where the witnesses were at the time of
incident, would not be admissible in evidence in view of provisions of
Section 162 of Code of Criminal Procedure as it will be no more than a
statement made to the police during investigation.
19. Similar proposition of law was laid down in Sat Kumar v.
State of Haryana, (1974) 3 SCC 643 & Ibra Akanda v. Emperor, AIR
1944 Calcutta 339. Since in the present case, it has not been proved that the
site plan Ex.PG of the place of occurrence had been prepared by the
Investigating Officer on the basis of identification of the either of the eye-
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witnesses and rather it appears that he himself had prepared the site plan,
therefore, a doubt has certainly been created as to the correctness and
admissibility of this site plan in evidence as it has not been proved as to
how he came to know that point "A" was exactly the place where the victim
had been hit by the accused and point "B" was the place from where the
eye-witness Santosh Kumari had seen the injured while being assaulted. No
knowledge could be presumed to have been imputed to the Investigating
Officer personally in the absence of identification of this site plan by some
eye-witness and, therefore, this site plan cannot be considered to be
admissible in evidence and hence, even it has not been established beyond
doubt that any incident took place at the place of occurrence as shown in
this site plan due to which the entire prosecution version has become
doubtful.
20. Proceeding further and coming to the plea of alibi as taken by
both the appellants-accused, the appellant Rajvir Singh had set up a case
that as on 30.11.2013, he had gone to Jalandhar to receive his brother-in-
law Sh. Gurdit Singh who had come from Kuwait and was not present at
place of occurrence. To prove his defence, the appellant-accused Rajvir
Singh has examined DW-1 Balvir Singh, DW-4 Gurdit Singh and himself
stepped into the witness box as DW-5. He deposed that he had gone to
Jalandhar on the night of 29.11.2013 itself and had stayed overnight in the
house of his friend and on 30.11.2013, he had picked his brother-in-law
Gurdit Singh from Bus Stand Jalandhar and thereafter both of them had
gone to Village Bhogpur at about 10:15 AM and at about 11:30/11:45 AM
they had gone towards Tanda. DW-1 Balvir Singh, Homeopathic
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Practitioner deposed that on 30.11.2013 at about 12:30/01:00 PM, the
accused along with brother-in-law had come to his clinic at Tanda to take
medicine. DW-4 Gurdit Singh, brother-in-law of Rajvir Singh also
supported his stand to this effect. The learned trial Court had disbelieved the
version of defence witnesses and the plea of alibi as set up by the accused. It
may be mentioned that 'alibi' is not an exception envisaged in the Indian
Penal Code or any other law. It is only a rule of evidence recognized in
Section 11 of the Evidence Act that facts which are inconsistent with the
facts in issue are relevant. The latin word "alibi" means elsewhere and that
word is used for convenience when an accused takes recourse to defense
that when the occurrence took place, he was far away from that place that it
is extremely improbable that he would have participated in the crime.
Undoubtedly, burden is on the prosecution to prove that an accused was
present at the scene and participated in the crime and such burden is not
lessened by the mere fact that the accused has taken the plea of alibi.
However, once the prosecution succeeds in discharging the burden, then it
is incumbent on the accused, who adopts the plea of alibi, to prove it with
absolute certainty so as to exclude the possibility of his presence at the
place of occurrence. It will also be relevant to mention here that the accused
also produced on record Mark DW4/D CCTV footage stated to be
containing their presence at Tanda. This CCTV footage had not been
formally proved in evidence as the author of the compact disc containing
this CCTV footage had not been examined neither his certificate under
Section 65-B of Indian Evidence Act had been produced on record.
Therefore, no scientific evidence or documentary evidence could come on
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record to show presence of accused Rajvir Singh at Tanda or Jalandhar as
on 30.11.2013. However, irrespective of the fact that the evidence led by the
appellants cannot be considered to be sufficient to establish the plea of their
'alibi' still, in view of the discussion as made above to the effect that the
prosecution itself has failed to discharge the burden of proving its case as
against the appellant beyond doubt and has not succeeded in producing
evidence of such nature which could establish the complicity of the
appellant in the subject offences, we are inclined to hold that the guilt of the
appellants had not been establish beyond doubt.
21. Accordingly, the findings of guilt of the appellant-accused for
commission of offences punishable under Sections 324 and 326 of IPC
cannot be stated to be sustainable in the eyes of law. The same are hence
reversed. Accordingly, the appeal is accepted. The impugned judgment and
order of trial Court are set aside. The appellants are acquitted of the charges
for which they had been held guilty and convicted. Their bail bonds stand
discharged.
22. All the pending criminal miscellaneous application(s), if any,
automatically stand disposed of.
(RITU BAHRI) (MANISHA BATRA)
JUDGE JUDGE
01.06.2023
manju/pooja saini
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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