Ishwar Singh vs State of Haryana

K.C. Puri, J.—This is an appeal directed by Ishwar Singh s/o Har Narain, r/o village Dhani Biran, P.S. Tosham, District Bhiwani, against the

judgment dated 29.8.1998 passed by Sh. J.S. Jangra, Additional Sessions Judge, Bhiwani, vide which the accused has been convicted u/s 307

IPC and sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 2,000/- and in default of payment of fine he was

to further undergo rigorous imprisonment for a period of six months.

The law was set on motion on recording the statement of Vijender Singh (brother of the injured) on 31.12.1996, who has stated that on

28.12.1996, at about 4.00 P.M., his brother Surender Singh, was playing cricket near the pond of Chandwala alongwith other children of the

village. He had gone to the pond with his buffalo to quench the thirst of the buffalo. Surender Singh and Ishwar Singh accused started to quarrel

with each other and at that time, Ishwar Singh-accused gave one blow of wicket on the left parietal of the head of Surender Singh and due to that

his brother Surender Singh fell down and became unconscious. The blood came out from his ear. At that time, Sudesh s/o Ram Nand, Jaibir Singh

s/o Brij Lal Singh were also present, who witnessed the occurrence. Surender Singh was removed to General Hospital, Bhiwani, on the basis of

which formal FIR was registered. After investigation, the challan was presented against the accused u/s 307 IPC.

Charge u/s 307 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.

The prosecution, in order to bring home the guilt of the accused, examined PW-1 Record Keeper Subhash Chander, PW-2 Dr. Pankaj

Khurana, PW-3 Dr. Vinod Malik, PW-4 Shakti Singh, Patwari, PW-5 Vijender Singh complainant, PW-6 Surender Singh injured, PW-7 S.I.

Ran Singh, PW-8 ASI Krishan Kumar, PW-9 ASI Surjan Singh, PW-10 Dr. Anurag Krishan Sahay and PW-11 Dr. Arvind Makkar and the

prosecution closed its evidence after tendering some documents.

It was not a case of no evidence against the accused and as such the accused was examined u/s 313 Cr.P.C. All the incriminating evidence was

put to the accused, to which he denied and has stated that he was innocent. He was playing cricket alongwith Surender Singh and the ball hit the

injured. The accused was called upon for defence evidence. He produced DW-1 Sunil s/o Sri Ram.

Learned trial Court after appraisal of the evidence on the file found the accused guilty u/s 307 IPC and sentenced him to undergo imprisonment

and fine, as narrated above.

Feeling dissatisfied with the above said judgment, the accused- appellant has preferred the present appeal.

Learned counsel for the appellant has submitted that in this case, the prosecution has examined PW-10 Dr. Anurag Krishan Sahay, who

conducted the MLR of the injured. This witness, in the MLR itself, has mentioned that injured received injury due to hitting of a cricket ball. It is

further submitted that in the cross examination also, this witness has admitted the fact that injuries could be the result of cricket ball. It is submitted

that the said witness has no axe to grind against the prosecution. He has given a true version.

It is further submitted that Vijender Singh was present at the time of examination of Surender Singh. Learned counsel for the appellant has

further contended that the doctor has stated that history of receiving injury by cricket ball has been given by the person who accompanied the

injured. It is further submitted that there is a delay of more than 3 days in lodging the FIR. The prosecution has tried to cover the delay by seeking

opinion of various doctors. The delay in lodging the FIR has been used for manipulating the case against the appellant. It is further submitted that

the ingredients of offence u/s 307 IPC are not attracted. Even, according to the prosecution version, it is due to sudden quarrel that injury has been

given by cricket wicket. The opinion of doctor has been obtained after about two months, declaring the injury as dangerous to life. So, there was

no intention and on that count also, the ingredients of Section 307 IPC are not made out.

It is further submitted that no recovery of wicket has been effected from the accused and on that account also, prosecution story is doubtful.

Lastly, it has been submitted that accused is a student and the punishment awarded to him is harsh.

To counter the abovesaid submissions, learned counsel for the State has submitted that delay in lodging the FIR has been explained on the file.

The injured was unfit to make the statement and on that account, there has been delay. The first priority of the relatives of the injured i.e.

complainant, was to treat the injured. So, the delay is not fatal.

It is further submitted that the history recorded by PW-10 Dr. Anurag Krishan Sahay is not to be taken into account as it was only the injured

person, who could explain the manner of receiving the injury. It is further submitted that recovery of wicket has not taken place. As the accused

has got the concession of anticipatory bail, so he cannot have the benefit of said fact. It is further submitted that the mere fact that the opinion has

been given on 20.2.1997, does not weaken the case of the prosecution. Regarding intention, it is submitted that the accused knew the

consequence of giving the blow on the parietal region. So the prayer for reduction in sentence has also been opposed.

I have given my thoughtful consideration to the rival missions made by both the sides and have also gone through the record of the case.

Surender Singh injured was immediately removed to General Hospital, Bhiwani after the occurrence at 5.40 P.M. on 28.12.1996. He was

accompanied by Vijender Singh PW-5, real brother of the injured. The doctor in the MLR has mentioned that injured received injury due to hit by

a cricket ball while playing. The said MLR is signed by Vijender Singh-complainant. Dr. Anurag Krishan Sahay has no axe to grind against the

prosecution. He has categorically stated that he has mentioned the history on the instructions of the person who accompanied. Although he has not

specifically named Vijender Singh, but he has stated that Vijender Singh accompanied the injured. Dr. Anurag Krishan Sahay has stated in the

cross-examination that injury received by Surender Singh could be the result, if a cricket ball hits with fast speed. In the examination-in-chief also,

he has stated that possibility of injury on the person of injured has been caused by a blunt weapon including the cricket wicket, cannot be ruled out.

Normally, the delay in lodging the FIR may not be fatal, but in the circumstances of the present case, when at the initial version produced by the

prosecution itself, it has come on the record that injured received injury due to cricket ball, in that case the delay in lodging the FIR is important.

No doubt, the first anxiety of the relatives is to give due treatment to the injured, but the delay of more than 3 days in lodging the FIR, remain

unexplained. The statement of injured was recorded more than 1-1/2 months (i.e. on 15.2.1997), after the occurrence and that loses its,

importance. There was ample chance for the prosecution to make manipulation.

So, in view of the above discussion, the appeal is accepted. The judgment of the trial Court is set aside and the accused stands acquitted, by

giving him the benefit of doubt.

The accused is on bail. His bail bond stands cancelled.

The amount of fine be refunded to the accused after expiry of the period of appeal/revision.

A copy of the order be sent to the trial Court for strict complaince.