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Judgment
Rajiv Sharma, Judge
State has come in appeal against the judgment of the learned Additional Sessions Judge (Presiding Officer, Fast Track Court), Solan rendered in Case No. 30/FT/7 of 2004/2003 decided on 12.10.2004 whereby respondents, who were charged with and tried for offences punishable under sections 307, 364, 506 read with section 34 of the Indian Penal Code, have been acquitted. Case of the prosecution, in a nutshell, is that complainant married Nidhi Mago daughter of respondents S.S. Mago and Komal Mago. Marriage was solemnized in Delhi. Couple left for Orissa for honeymoon. S.S. Mago came to Orissa and brought them back on the pretext to host reception party. However, respondents lodged false F.I.R. against him. Nidhi Mago was separated from the complainant. She was married to some other person. S.S. Mago had always been advancing threats to the complainant to withdraw the cases and not to appear in a case at Karnal. He did not accede to the request of S.S. Mago.
On 29.10.2000 at 6.15 P.M., while Sanjay Bhardwaj (complainant), was strolling in a lonely place in Sector-5, Panchkula, a Maruti car bearing No. HR-49- 1250 came there. Respondents were sitting in the car. The car was driven by a person, who was not known to the complainant. All of them came out of the car and knocked the complainant down. Thereafter, Komal Mago applied tape on the complainant''s mouth. Respondents tied his hands and forcibly put him on the rear seat of the car. On one side, Aman Mago sat and on the other side of the complainant, S.S. Mago sat. A Chunni was thrown on the complainant face. Respondent Komal Mago took out a knife from her purse and handed it over to Aman Mago, who put the knife on the stomach of the complainant and threatened to thrust the knife into his body if he tried to move. Car was taken towards Baddi. Car was stopped on the road and respondents kept sitting in that lonely place for about 30 minutes. Thereafter, car was taken further. It was stopped at some distance. Complainant was taken out of the car. Respondents stood around him. Respondent Komal Mago incited other respondents to kill the complainant. Respondent S.S. Mago took the knife from Aman Mago saying that last time he had failed to kill the complainant and this time, he will do the job. Thereafter, S.S. Magoi stabbed the complainant on his stomach. He tried to give another blow, but the complainant moved aside and fell down into a gorge. Complainant after 45 minutes got up and was able to untie his hands. He removed the tape from his mouth and climbed up to the road. A scooterist who was not known to the complainant, happened to come there. He brought him on his scooter and dropped near a clinic at Baddi. Some telephonic information was received by the police at Police Post Baddi whereupon H.C. Sewa Singh, Constable Sazid Khan and Constable Madan Lal proceeded towards Malhotra Clinic. They found the complainant in injured condition. He was taken to C.H.C. Nalagarh. Opinion of the Medical Officer was taken at Nalagarh. Statement of the complainant was recorded u/s 154 of the Code of Criminal Procedure. It was sent to Police Station, Barotiwala through Constable Madan Lal where F.I.R. No. 170 under sections 364, 307, 506 read with section 34 of the Indian Penal Code was lodged. Investigation was carried out and the cancellation report was prepared by the Station House Officer on 31.12.2000. It was filed in the Court of Sub Divisional Judicial Magistrate, Nalagarh on 3.10.2001. Complainant had also filed private complaint in the same Court on 6.6.2001 regarding the same occurrence. Learned Magistrate did not accept the cancellation report and took the cognizance of the matter vide order dated 2.9.2002. He directed summons to be issued to the respondents. Learned Magistrate committed the case to the learned Sessions Judge, Solan. Respondents were directed to appear in the Court on 6.2.2003. They appeared before the learned Sessions Judge, Solan. Thereafter, the case was assigned to the Additional Sessions Judge by the Sessions Judge. Respondents were charged with offences punishable under sections 364, 307, 506 read with section 34 of the Indian Penal Code. They pleaded not guilty.
Prosecution examined as many as ten witnesses. Statements of respondents were also recorded u/s 313 of the Code of Criminal Procedure. They pleaded not guilty. Respondents have also examined three witnesses in defence. Learned Additional Sessions Judge (Presiding Officer, Fast Track Court) acquitted the respondents on 12.10.2004. Hence, this appeal by the State.
Mr. Vivek Singh Thakur, learned Addl. Advocate General, Mr. Amarjit Singh and Mr. Abhinay Sharma have vehemently argued that the prosecution has proved its case against the respondents. According to him, the trial court has not correctly appreciated the oral as well as documentary evidence.
Mr. N.K. Thakur, learned Senior Advocate has supported the judgment of acquittal.
We have heard the learned counsel for the parties and have perused the records carefully.
Complainant has appeared as PW-1. According to him, he had love affair with Ms. Nidhi Mago. They contracted marriage on 16.5.1999. Marriage was solemnized in Lajpat Nagar, Arya Samaj Mandi, New Delhi. Thereafter, they went to Orissa for honeymoon. Nidhi telephonically gave Orissa address to S.S. Mago. He came to Orissa and on the pretext of hosting a reception party asked them to come back. They came with him on 26.5.1999. While they were coming back, at Karnal, he was asked to get down from the car. They took Nidhi Mago with them. He was told that they would come next day to his parents'' house to talk about the reception party. In fact, nobody visited his house and no reception party was hosted. Nidhi Mago was married to one Prashant Arora of Karnal. Respondents had been advancing threats to kill him, if he did not withdraw the cases and the petitions filed by him. They asked him not to appear as witness on behalf of Lt. Col. S.N. Arora, father of Prashant Arora. On 29.10.2000 while he was walking in Sector-5, Panchkula at about 6.15 P.M., a blue Maruti car bearing registration No. HR-49-1250 came from behind. Car was stopped in front of him. Respondents and one more person, whom he did not know, came out of the car and knocked him down. Komal Mago applied plaster on his face. His hands were tied by S.S. Mago, Aman Mago and the fourth man. He was forcibly put into the car in the rear seat. He was made to sit in between Aman Mago and S.S. Mago. Komal Mago was sitting in the front seat and the fourth man was driving the car. A Chunni was put on his face. Komal Mago took a knife from her purse and handed it over to Aman Mago. Aman Mago placed the knife on his stomach and threatened to kill if he tried to move. He was taken in the car towards Baddi via Pinjore. At Baddi barrier, Komal Mago came out of the car and paid the toll tax. She again sat in the car and the car was taken on a road which is on the right side of Baddi. The car was stopped. He did not know the name of place. They stayed there for about 25 minutes. It was dark at that time. They proceeded in the car further. The car was stopped. He was taken out from the car. There was a gorge on the right side of the road. He was standing on right side of the road surrounded by the respondents. Komal Mago instigated Aman Mago to kill him. S.S. Mago took the knife from Aman Mago saying that last time he had failed to kill him and this time he would certainly kill him. Then S.S. Mago stabbed him on his stomach and while he was attempting a second blow, he moved a bit and fell into gorge about 25-30 feet below. He was feeling severe pain. With great difficulty, he was able to untie his hands. He removed the tape. He sustained some bruises on his back due to fall into the gorge. He was sitting on the road under severe pain as his intestines were coming out. Just then a man on a scooter came there. He narrated the incident to him. He brought him on his scooter and dropped him about 100- 150 feet away from Malhotra Clinic at Baddi. The man did not want to be involved in a police case. There were shops at the place where he was dropped. He went to the shop and narrated the incident to the shopkeeper. Two persons were present there. They took him to Malhotra Clinic. He later on came to know that their names were Kiran Pal and Govind. Doctor gave him injection but he was told not to disclose this fact to any one. He narrated the incident to the doctor. He obtained telephone number of his house from him and informed his parents as well as the police. After a while police came. Police took him to some clinic but the clinic owner did not open the door. Thereafter, police took him to Nalagarh Government hospital. His statement Ex.PW-1/A was recorded. Police had bought him in some private vehicle. He was medically examined. He had put his signature on M.L.C., which is Ex.PW-1/B. After sometime, his father accompanied by some of his friends came at the Hospital. Doctor at Nalagarh hospital referred him to P.G.I. He was taken to P.G.I., Chandigarh. Police accompanied him to P.G.I. He was operated upon at P.G.I. He was discharged on 7.11.2000. Thereafter, he remained admitted in Manimajra dispensary for 3-4 days. He has identified his shirt Ex.P-1 and pants Ex.P-2, which were taken into possession by the police vide seizure memo Ex.PW-1/C. He has categorically admitted in his cross-examination that in the complaint, date of occurrence is 30.10.2000, however, according to him; it was a typing mistake, which came to his notice only at the time of recording of the statement in the court. He has admitted that while appearing as his own witness before the Magistrate at Nalagarh, the date of occurrence had been stated as 30.10.2000 at 6.15 P.M. This was also a mistake as according to him, occurrence took place on 29.10.2000. He has also admitted that no application was moved before the Magistrate for correcting the date of occurrence. He came to know about the error only at the time of recording of his statement in the Court. He has also admitted that when he was medically examined by the doctor at Nalagarh, there was one scar mark on his abdomen and the doctor had made a mention of such mark on the M.L.C. He volunteered that the doctor had asked him to give any identification mark and he stated to him that he had a mark in the abdomen. According to him, his residence is in Sector-2 Panchkula, which is 5 KMs from where he was abducted. He has also admitted that Sector-5 is in the heart of Panchkula. He has also admitted that area-wise Sector-5 is a big sector. He has also admitted that bus stand exists in this sector. Self stated that it was in the corner of the sector. He has also admitted that the Police Station is in sector 5, which is just behind the bus stand. He has admitted that Vatika Park is in sector-5. He has further admitted that the gate of Vatika Park is about 100 metres from the point from where he was kidnapped. According to him, he resisted kidnapping but things happened so quickly that before he could raise alarm, accused Komal Mago applied tape on his mouth. When he was lying on the ground, they tied his hands. They pushed him into the car. He did not receive any injury at that time. They took him through Red Bishop Tank Chowk. Red Bishop is a hotel of Haryana Tourism. In front of this hotel, there is traffic red light. He has also admitted that there is a traffic check post at the red light. He has also admitted that at a distance of about 300-400 metres from this red light point, there is another red light on old Panchkula road. He has also admitted that there is a check post at this red light point also. He has also admitted that at a distance of 4-5 KMs from this red light point, there is Police Station at Chandi Mandir on Shimla road. He has also admitted that Mughal garden is frequented by large number of people daily. Beyond this, towards Shimla there is Pinjore Bazaar. There is large number of shops on both sides of the road. He has admitted that before reaching Baddi, there is a toll tax barrier. He has admitted that 7-8 persons are present at the toll tax barrier. He has further stated that the accused stopped the car at some distance from the barrier, Komal Mago came out of the car and paid the tax. He could see all this through Chunni put on his face. His hands were tied on the back side. The knife was pointed towards his abdomen. Lot of bleeding took place. He fell down in the gorge by way of rolling. He untied his hands and removed the tape and started climbing. The climbing up took 20-25 minutes. Signs of rope were visible on the date of recording of his statement in the court. He threw the rope and the tape on the spot. He came up to the road. He sat there for about 45 minutes. The scooterist came there. According to him, he stayed for 11/2 -2 hours at Nalagarh hospital. Police for the first time met him in the clinic. Two persons had taken him to the clinic. He was made to lie on a bench inside the clinic. Doctor gave him injection. He got up from the bench and came out of the clinic. He did not remember whether police met him at the time when he was outside the clinic or they met him when he was inside the clinic. He stayed at Malhotra Clinic for about one hour. He disclosed to the doctor that S.S. Mago and Komal Mago stabbed him. He has stated that apart from the injection, no other first aid was given to him by the doctor despite the fact that his intestines were coming out. A small portion of the intestine had come out and it was visible. There was a cut on his shirt. He did not remember whether he had shown that cut to the doctor at Nalagarh. Police met him at 10.30 or 10.45 at the clinic. Police took him to Nalagarh after about one hour or so. He did not remember the time when they reached Nalagarh hospital. His father met him at Nalagarh hospital and not at Baddi clinic. His brother had not come with his father. According to him, his father was accompanied by Boby, Gautam, Mr. Mahajan and Mr. Rakesh and some other persons had also come, but he did not know them. He has also admitted that he could not locate the site as the incident had taken place in the dark and he had not visited the site earlier.
According to PW-2 Dev Vert Sharma, Sanjay Bhardwaj (PW-1) was married to Ms. Nidhi Mago on 16.5.1999. Marriage was solemnized at Arya Samaj Mandir Lajpat Nagar, New Delhi. According to him, neither he nor his family members nor parents of Nidhi Mago were present at Arya Samaj Mandir at the time of solemnization of the marriage. Marriage was contracted without their consent. According to him, accused S.S. Mago and his nephew went to Bhuvneshwar and brought Sanjay Bhardwaj and Nidhi Mago on the pretext of hosting reception party. They came by air to Delhi and thereafter they proceeded in a car. Sanjay Bhardwaj (PW-1) got down from the car at Karnal. He had been working as male staff nurse in Civil Hospital, Mani Mazra. He received a telephonic message at about 11.00 P.M. on 29.5.2000 then stated on 29.10.2000 from Malhotra Hospital, Baddi informing him that his son was lying in a serious condition. Doctor told him that his son has been stabbed by his father-in-law. He accompanied by Rakesh Kumar, D.K. Mahajan, Mr. Gautam and Boby, who are his neighbours, came in a car to Malhotra Clinic at Baddi. He also informed some of his staff members. They had also gone to Baddi by some other car. Mr. Malhotra (PW-4) disclosed him that his son had been taken by police to Nalagarh hospital. Thereafter, they went to Nalagarh hospital. They reached there at about 1.00 A.M. on 30.10.2000. His son was lying on the bed. Police recorded his statement. He saw that stomach was bleeding. He inquired from his son as to what has happened. His son told him that he was kidnapped from Panchkula by the accused persons present in the court and one more whom he did not know. He was stabbed by them somewhere near Baddi in a Jungle. Sanjay Bhardwaj was wearing a shirt which was having a cut of knife. There was blood on the shirt and also on the pants. Doctor told him that the matter was serious and the patient was being referred to P.G.I. He then took Sanjay Bhardwaj to P.G.I. Police official also accompanied them. Sanjay Bhardwaj remained hospitalized for 7 days at P.G.I and thereafter he remained hospitalized in Civil Hospital, Manimajra. He was discharged from P.G.I. on 7.11.2000. He has admitted that in F.I.R. No. 87 dated 27.5.1999, he has been named as accused. According to him, it was a false case. He has admitted that he has also been named as accused in F.I.R. No. 318 dated 13.8.2000 u/s 364. According to him, it was also a false case. According to him, they reached P.G.I. at about 3.00 A.M. on 30.10.2000. One constable was accompanying them from Nalagarh to P.G.I. He did not know his name. Treatment was started by the doctor at P.G.I. within 5-10 minutes. He was operated upon after 2-3 hours. His wife had also come. His statement was recorded at P.G.I. by some police official, who had come from Baddi and not by the constable who was accompanying them. According to him, telephonic call from Baddi was received by him. He denied the suggestion that there was no cut on the shirt of Sanjay Bhardwaj.
Nachhatar Singh had brought the summoned record of Sanjay Bhardwaj.
PW-3 is Dr. Kuldeep Dhawan. He was working as Registrar, Department of Surgery P.G.I. Chandigarh and was posted there with effect from September, 1999 to September, 2002. According to him, Sanjay Bhardwaj came in a state of shock accompanied by his friend Rahul on 30.10.2000. He was admitted in emergency recovery ward. Emergency operation was conducted on 30.10.2000. Patient was discharged on the 7th day post operative day in a satisfactory condition, i.e. 7.11.2000. The injury on his person was possible only by way of stab injury. Sanjay Bhardwaj had arrived at the hospital at 3.10 A.M. on 30.10.2000 with the alleged history of stab. It took him 2.10 hours to operate upon him. Injury, according to him, was received probably in hours not in days. Injury was sufficient to cause death. It was on the vital part of the body. According to him, the same patient was even earlier operated by him in December, 1999 for a stab injury in the abdomen for which operation on the abdomen was carried out. On court question put to him, he stated that there may or may not be presence of previous scar of stab because the scar may have been taken in the incision line. According to him, the site of second stab was on the scar of the previous surgery, i.e. in the mid line. Medico Legal case summary Ex.PW-3/A was also prepared by him. In this case summary, date of discharge has been mentioned as 10.11.2000, which according to him was a mistake. Patient was discharged on 7.11.2000. In his cross-examination, he has admitted that as per the discharge summary produced by PW-1, the admission number mentioned is 90828. He has admitted that admission number allotted to the patient in P.G.I. remains the same throughout his stay in the hospital. He has also admitted that the admission number is mentioned in every record of the patient. He has also admitted that in medical legal case summary Ex.PW-3/A, admission number mentioned is 90826. According to him, number on the discharge summary was written by the Junior Resident but C.R. number in both the documents is the same, which was more important. According to him, when he started the treatment of patient, no policeman was there. He did not remember whether he examined the clothes of the patient or not. He has categorically admitted that all M.L.C. cases coming to the P.G.I. if referred by some hospital would be accompanied by a reference from such hospital. He did not know that the M.L.R. issued by such referral hospital also accompanied by the reference slip. He had seen the record brought from P.G.I. There is no reference slip in the record. He has admitted that unless parietal peritoneum is ruptured omentum could not come out from the stab wound. He has admitted that he has not mentioned in the record that parietal peritoneum was ruptured. He has also admitted that he has not mentioned in his operation note that there was a cut or a stab in parietal peritoneum. According to him, there was a cut on the ileum, which is a vital part. Then stated that there was no cut on the ileum but the blood supply of the ileum was cut due to tear in the mesentery of the ileum for that ileum became necrosed and devitalized. He has admitted that unless or until a vital organ is cut the injury cannot be said to be sufficient in ordinary course to cause death. He has also admitted that in the kind of injury found on the person of Sanjay Bhardwaj, there would be profuse bleeding. According to him, two handful of clots, i.e. 600 ml of blood alongwith 500 ml blood that means approximately more than one litre of blood was found in the peritoneum cavity.
According to PW-4 Dr. Mukesh Malhotra, he was working as Medical Officer since 1991 in Malhotra Hospital, Baddi. Sanjay Bhardwaj, who was accompanied by two persons, was standing outside Malhotra hospital building on 29.10.2000. He had gone somewhere. He returned to the hospital in the evening. He got down from his car. Sanjay Bhardwaj was present there. He told that he had been stabbed by his father-in-law. He raised his shirt. He saw that there was a cut measuring about 11/2 -2 inches. He told that he could not do anything in the matter. He did not thoroughly examine him. He asked to telephonically inform his parents about the occurrence. He made a telephone call, which was received by some lady, probably his mother and informed her about the incident. The persons, who accompanied Sanjay Bhardwaj were known to him. They have their Paan shops nears the hospital approximately at a distance of 100 metres. He informed Sanjay Bhardwaj that he has made a telephonic call to his parents. He and two others left the hospital premises. However, after 5 minutes a worker of the hospital came to him and told that a person was lying on the road. He then went to the road with his worker and found that Sanjay Bhardwaj was lying. He with the help of worker made him to stand and brought him back to bench, which was just outside the hospital building. In his cross-examination, he has categorically admitted that when he saw the wound of Sanjay Bhardwaj, no bleeding was there. He did not remember when Sanjay Bhardwaj was seen by him in the hospital. According to him, it was late in the evening. There was some dust on the shirt. Police arrived within 15 minutes of making of call. Police recorded statement of Kiran Pal and Govind on the next day. His statement was recorded in the hospital. He did not maintain any record of arrival of Sanjay Bhardwaj and applying the pad etc.
PW-5 Kiran Pal has testified that he is running a shop of Paan- Beeri- Cigarette etc. According to him, on 29.11.2002 then stated 2000, Sanjay Bhardwaj present in the Court was standing on the road in front of his shop. It was about 8.45 or 8.00 P.M., he was closing his shop. He came and asked for help and in the meantime, his neighbour Govind also came. He asked him what happened. He disclosed that he has been stabbed and he appeared to be perplexed. He was holding a side of his shirt by his hand. He and Govind took him to Malhotra hospital. When he reached the hospital, Malhotra came there from some where and got down from the car. He returned to his shop while Govind remained with Sanjay Bhardwaj. He returned within a minute. Sanjay Bhardwaj did not disclose to him, the name/names of the persons, who stabbed him.
PW-6 ASI Sleem Ahmad has testified that he was working as Investigating Officer in Police Station, Barotiwala. At about 2.15 A.M. on 30.10.2000, Madan Lal came to Police Station with rukka Ex.PW-1/A, on the basis of which F.I.R. Ex.PW-6/A was lodged.
PW-7 HC Sewa Singh has deposed that he was working in Police Post, Baddi as Head Constable Investigating Officer from March, 2000 to July, 2002. He partly investigated the case. On 29.10.2000, on receiving a telephonic message he went to Malhotra Clinic alongwith constable Madan Lal and Sajid Khan. He reached Malhotra Clinic at about 11.50 P.M. He arranged a private vehicle and took Sanjay Bhardwaj to Civil Hospital, Nalagarh. At Nalagarh, after obtaining permission of the doctor, he recorded the statement of Sanjay Bhardwaj Ex.PW-1/A u/s 154 of the Code of Civil Procedure. This statement was sent by him through Constable Madan Lal to Police Station Barotiwala for registration of the case. He moved an application Ex.PW-7/A for medical examination. He obtained the M.L.C. from the doctor. He was referred to P.G.I. Chandigarh. Shirt and pants were taken into possession by him at Nalagarh hospital vide memo Ex.PW-1/C. According to him, it took about 40-45 minutes to arrange a vehicle for Nalagarh after they reached Malhotra Clinic, Baddi. He recorded the statement of Sanjay Bhardwaj at 1.30 A.M. at Nalagarh hospital. He did not know by which mode Madan Lal went to the Police Station with Rukka. According to him, Nalagarh hospital is at a distance of 13-14 kilometres from Malhotra hospital, Baddi. It took them about 20-25 minutes to travel this distance. Madan Lal after delivering the Rukka did not return to Nalagarh hospital. Patient was referred to P.G.I. He returned to Police Post, Baddi. Madan Lal was in Police Post, Baddi and the file was also there. He also recorded the supplementary statement of Sanjay Bhardwaj. According to him, it took about three hours in recording statement of Sanjay Bhardwaj under sections 154 and 161 of the Code of Criminal Procedure and preparing the seizure memo. He was free by 7-8 A.M. He has categorically admitted in his cross-examination that Sanjay Bhardwaj was taken from Nalagarh to Chandigarh after all the proceedings were over.
Case was also partly investigated by PW-8 Sukh Darshan Singh, ASI. He has prepared the site plan Ex.PW-8/A. He has admitted in his cross-examination that he did not make any inquiry from the people of Baddi and adjoining area regarding the incident. He has also admitted that sector-5 is a busy place. Vehicles are always passing on the roads. Point - ''A'' on Hot Million road in Ex.PW-8/A is about 20-30 feet from the point from where this road start from road-''C''. According to him, Nirjhar Vatika is a medium size park.
PW-9 Vijay Kumar was working as Station House Officer, Police Station, Barotiwala since 5.10.1999 to 22.11.2001. He investigated the case and recorded the statements of Sanjay Bhardwaj, S.K. Aggarwal, Vivek Gupta, Rohit Chaudhary, Kiran Pal Singh, Govind and Mukesh Malhotra. According to him, he asked him to show the spot where he was stabbed. He told that he would show the spot on 27.11.2000. On 27.11.2000, they went on Baddi-Sai road but he was not able to show the place of occurrence.
PW-10 Dr. Ajay Kumar Sethi has deposed that on 30.10.2000 at about 1.45 A.M. he medically examined Sanjay Bhardwaj. On examination, he found that patient was conscious, vitals were stable. He found following injuries on his person:
A clean incised wound size 2 inch x 1 1/2 inch over abdomen mid portion. Omentum was coming out from the wound.
Patient was referred to P.G.I. for further treatment and medico legal opinion. According to him, the admission number of the patient in the P.G.I. was 90826, report No. 1448. He issued M.L.C. Ex.PW-10/A. He was not in a position to say whether in this case the bleeding was profuse or was in small quantity. He has admitted that if a patient comes to them with his injury bleeding the factum of bleeding is mentioned in the M.L.C. He has admitted that in MLC Ex.PW-10/A, there is no mention of any bleeding. He has also admitted that if the injury mentioned is caused to a person and his hands are tied and is thrown 40 feet below, he would become unconscious. He even can die depending upon the kind of surface upon he falls. According to him, if a man goes 40 feet by rolling, he is likely to receive injuries on his body, depending, however, upon the clothing. According to him, if a man is only having a shirt and pants on his body goes down rolling 40 feet on a rough surface of a mountain some abrasions would appear on his body. According to him, on the person of Sanjay Bhardwaj, no injury other than shown in the M.L.C. was found. There was old mark of operation on the abdomen, which he has mentioned as mark of identification. Injury mentioned in the M.L.C. was fresh and was separate from the mark of identification. However, he did not measure the distance between the two. He could not narrate for how much time the patient was admitted in the hospital. He has admitted that every M.L.C. is entered in emergency register, but this procedure is only adopted if the patient is brought in emergency hours, otherwise the entry is made in the O.P.D. register. According to him, he examined the patient at 1.45 A.M. Whether entry of this case has been made in emergency register or not, he could state only when the emergency register was brought before him. According to him, as per rule, the entry should have been there. He has admitted that whenever patient is brought by the police and the patient is referred by them to some other hospital; they give a copy of M.L.R. to the police and the reference slip to the patient. However, sometime, it happens that the patient without waiting for the preparation of reference slip leaves the hospital. He has admitted that if the patient stays in the hospital for 1-2 hours, after his examination, within this time, reference slip is also ready and is always given to the patient. He did not remember whether in this case reference slip was prepared or not. No office record of reference slip was maintained. But as per usual practice, he felt that in this case also reference slip was prepared. He has admitted that if there is a cut on the clothes corresponding to the injury/injuries, the fact is also mentioned in the M.L.C. provided that the patient is wearing the clothes having such cut. He has admitted that in M.L.C. Ex.PW-10/A, there is no reference to any cut on the clothes. He has admitted that if there is an injury having length of 2 inches, the corresponding cut on the garment shall also be of the same length. He had seen the cut on the shirt Ex.P-1. This cut does not correspond to the injury mentioned in the M.L.C. He has denied the suggestion that in the M.L.C. Ex.PW-10/A, the date of arrival mentioned in circle ''A'' is 3.10.2000. However, in fact it is 31.10.2000 but that too has been written by him inadvertently and it should have been 30.10.2000. According to him, the date is generally mentioned by the doctors from the police docket. The explanation given by him is that sometime what happens by the time patient is brought, the date is changed by the police, but by oversight they mention the same date. He has admitted that in M.L.C. Ex.PW-10/A in circle ''B'', date of examination mentioned is 31.11.2000, volunteered that certainly the month of examination written is incorrect. He had seen Ex. DB, which is attested copy of Ex. PW-10/A. He has admitted that in Ex. DB the date of examination of the patient, which is written in his hand, is 30.10.1999, self stated that the figure ''99'' was inadvertently written by him and the same has been corrected by him in Ex.PW-10/A by writing ''2K'' and in token of such correction, he has also put his initials on Ex.PW-10/A. He has also admitted that the time of examination mentioned in Ex. DB is 1.45 P.M. However, the same has also been corrected by making it ''A.M.'', but there he has not put his initials. The date of arrival mentioned by him in Ex. DB is 31.10.1999. The figure ''99'' was later on corrected by him to make it ''2K''. He has admitted that in Ex. DB, there is no entry of the police docket number. According to him, in fact Ex. DB is the copy of M.L.R. maintained by the office, while Ex.PW-10/A has been handed over by him to the police. The corrections were carried out by him in Ex.PW-10/A only and not in the office copy. He has admitted that an inquiry against him is being conducted by Dr. Ajay Sharma, Additional Director Health Services, Himachal Pradesh and he has been charge-sheeted. He has also admitted that from the depth of wound, the doctor cannot ascertain the extent of damage and the track of the wound.
Respondents have also examined three witnesses. According to DW-1 Rakesh Swami, he was working as Store Keeper in C.H.C. Nalagarh. He has brought the admission register. According to him, every MLC case is entered in the register. He has seen the register brought by him. There was no entry in the name of Sanjay Bhardwaj in the admission register. He has also stated in the examination-in-chief that the time of arrival is also entered in the register. A patient who remains admitted in the hospital even for 4-5 hours, his admission chart is prepared, which is called patient record file.
DW-2 Vivek Gupta has testified that he had gone to Suraj Cinema at Panchkula on 29.10.2000 to watch film during 9.00 P.M. to 12.00 P.M. show. While he was purchasing ticket accused Aman Mago and his sister met him in the theatre. They met him again during interval of the picture.
DW-3 S.K. Aggarwal has also testified that accused S.S. Mago was known to him since 1965. On 29.10.2000, he had invited S.S. Mago and his wife to dinner at his house at Chandigarh. They had come to him at about 7.00 P.M. They stayed with him for about 2-3 hours and left about 10.15 P.M.
According to the case of prosecution, PW-1 Sanjay Bhardwaj was abducted from Sector-5, Panchkula. PW-1 Sanjay Bhardwaj has deposed that he was abducted in a car on 29.10.2000 at about 6.15 P.M. He did not know the name of fourth person, who was driving the car. According to him, he was knocked down and his hands were tied and plaster was also put on his mouth by Komal Mago. He was made to sit between Aman Mago and S.S. Mago. His face was covered with Chunni. Thereafter, Komal Mago handed over knife to Aman Mago. Aman Mago pointed the knife on his stomach and threatened to kill him if he tried to move. Thereafter, he was taken towards Baddi via Pinjore. The toll tax was paid by Komal Mago. The car was stopped at some place and they stayed there for about 25 minutes. It was dark at that time. He was standing on the right side of the road surrounded by four persons. According to him, Komal Mago instigated Aman Mago to kill him. However, S.S. Mago took the knife from Aman Mago and stabbed him. While he was attempting second blow, he moved a bit and fell into the gorge about 25-30 feet below.
It has come on record that Sector-5 is a busy sector. It is in the heart of Panchkula town. Police station and Hot Million restaurant are situated nearby. A park by the name of Nirjhar Vatika is also nearby as per Ex.PW-8/A prepared by PW-8. Lot of vehicles passes through the road. The house of complainant, i.e. PW-1 Sanjay Bhardwaj is about 2 KMs away from the spot from where he was kidnapped. PW-1 was about 29 years old at the time of incident, i.e. 29.10.2000. It is not believable that he could not put up resistance. It is also not believable that the respondents could have abducted him from a busy sector. He could put up resist at the time when his hands were tied and his mouth was plastered. PW-1 has stated that on way from Panchkula to Baddi, there is Red Bishop hotel of Haryana Tourism. There is a red light near Red Bishop Tank Chowk. There is also a traffic check post. He has admitted that just opposite to the red light is Chandi Mandir Cantonment gate and according to him at that time only 3-4 persons used to be there at the check post. According to him at a distance of about 300-400 metres from this red light point, there is another red light on old Panchkula road. There is a slip road from this red light, which goes to Shimla. He has also admitted that there is a check post at this red light point. He has also admitted that there is a Police Station at Chandi Mandir on Shimla road. The road passes through Mughal garden and it is frequented by many visitors and thereafter the road turns to left and there is also a Bazaar. He has also admitted that at Chandi Mandir road there is a bifurcation towards Nalagarh. There is a toll tax barrier at the spot. According to him, 7-8 persons are present at the toll tax barrier. He could put up resistance when he was abducted in Sector-5, Panchkula and try to invite the attention of the passersby when he passed through the busy sector and reached at Red Bishop Hotel. There was a police check post. There was a Police Station at Chandi Mandir on Shimla road. There is a busy Bazaar before one turns to left side towards Nalagarh. The version of PW-1 is that he fell down into the gorge about 25-30 feet below. He has not received any injury. It is not believable that a person when falls 25-30 feet below will not receive any injury.
PW-10 Dr. Ajay Kumar Sethi has noticed only one injury on his person while issuing M.L.C. Ex.PW10/A. PW-10 has categorically stated that if the injury of a kind mentioned in Ex.PW-10/A is caused to a person and his hands are tied and goes down 40 feet rolling, he is likely to receive injuries on his body, depending upon the clothing worn by him. According to him, if the man wearing only shirt and pants goes down 40 feet on a rough surface of a mountain, some abrasions would appear on his body.
It is also not understandable how PW-1 untied himself. It has come in the statement of PW-1 that the rope was so tightly tied that signs of rope were visible on his hands even on the date of his examination in the court, i.e. 7.6.2004.
There is also discrepancy who removed the tape from the mouth of PW-1 Sanjay Bhardwaj. PW-1 while appearing in the Court has stated that he removed the tape himself while he was in the gorge, after he had removed the rope. However, in his statement u/s 161 of the Code of Criminal Procedure mark "S", he has stated that the persons, who abducted him, removed the tape from his mouth while he was on the road. Thereafter, the case of the prosecution is that PW-1 climbed the hill. He was in severe pain. A scooterist came and he dropped him near the Malhotra Clinic. PW-1 did not know the name of scooterist and he has not been examined. Identity of the scooterist has not been disclosed. The reason assigned is that the scooterist never wanted to be involved in the matter. However, it has come on the record that two shops were open at that time. Thus, the scooterist could easily be identified by them. He was taken to the Malhotra Clinic by PW-5 Kiran Pal and Govind. Govind has not been examined. According to PW-5 Kiran Pal when he was closing shop at 8.45 P.M., PW-1 came to his shop. PW-1 asked him to help him. Thereafter neighbour Govind also came. According to him, he and Govind took him to Malhotra Clinic. In his examination-in-chief, he has specifically stated that Sanjay Bhardwaj did not disclose him the names of the persons, who stabbed him. Neither the name of Kiran Pal (PW-5) nor Govind has been stated in the statement Ex.PW-1/A recorded u/s 154 of the Code of Criminal Procedure. Even names do not find mention in statement mark ''S'' recorded u/s 161 of the Code of Criminal Procedure. PW-1 has not stated their names in complaint Ex.D-2 and in the statement recorded before the Magistrate vide Ex.D-3. It casts serious doubt on the persecution version that PW-1 was taken to Malhotra Clinic by PW-5 and Govind. According to PW-4 Dr. Mukesh Malhotra, he informed the parents of PW-1. According to him, telephone was picked up by the lady. However, according to the statement of PW-2 father of PW-1, he picked the phone and thereafter left for Nalagarh with his friends.
According to PW-1, when he was stabbed there was lot of bleeding. PW-4 Dr. Mukesh Malhotra, who examined him at the first instance, testified that when he saw the wound, no bleeding was noticed. Similarly, PW-10 Dr. Ajay Kumar Sethi, who examined PW-1 at Nalagarh, did not mention about the bleeding in Ex.PW-10/A. According to PW-10, if a patient comes to a doctor with bleeding injury, the factum of bleeding is mentioned in MLC. According to him, if subcutaneous tissues are not cut, it is a case of very small injury, for example a cut during use of razor while shaving. PW-1 has not mentioned in Ex.PW-1/A, complaint Ex.D-2, statement made before the Magistrate Ex.D-3 and statement made u/s 161 of the Code of Criminal Procedure that he was given any medical treatment at Baddi Clinic. According to PW-1, he was given injection by the doctor since he was in severe pain. However, PW-4 Dr. Mukesh Malhotra has deposed that he was away and when he came at his Clinic by car. He got down from the car and saw PW-1 Sanjay Bhardwaj and two other persons with him. To show his wound, PW-1 raised his shirt. He saw that there was a cut measuring about 11/2-2 inches. He told him that he could not do anything in the matter and he should go to some other hospital. He did not thoroughly examine him. He also testified that PW-1 and two other persons left the hospital premises, but after five minutes, a worker of hospital came to him and told that a person was lying there on the road. He then went to the road with the worker and found that PW-1 was lying there. With the help of worker, he made him to stand and brought him back to bench. Then he informed the police telephonically. He applied pad on the wound of Sanjay Bhardwaj. Thereafter, police came and took him to some other hospital. It has not come in the statement of PW-1 that he had fallen on the road and was taken back to the Clinic. He has not mentioned of applying pad on his wound by PW-4. According to MLC Ex.PW-10/A, the size of the wound was 2-21/2 inches. According to PW-3 Dr. Kuldeep Dhawan, who has prepared Ex.PW-3/A and Ex.PW-3/B the size of injury given is 1.5 cm. However, this discrepancy in the size of the wound has not been explained. According to MLC Ex.PW-10/A, the date of arrival of PW-1 at the Hospital given is 3.10.2K. Initially, in place of 2K, the figure was ''99'', as per MLC Ex.DB. The date in circle ''B'' is 30.11.2K. The incident has taken place in the month of October and not in the month of November. The time of examination in Ex.PW10/A is 1.45 A.M. However, it is clear that initially it was "P.M." According to Ex.DB also, initially, the time was 1.45 P.M. In Ex.PW-10/A, number of police docket has been given. However, the same is missing in Ex.DB. DW-1 Rakesh Swami has brought the record of admission register. According to him, every MLC is entered in the register. There was no entry of Sanjay Bhardwaj from 29.10.2000 to 31.10.2000 in the register. According to him, the time of arrival of the patient is also entered in the register. A patient who remains admitted in the hospital even for 4-5 hours, his admission chart is prepared, which is called patient record file. Why the entry has not been made in the register has not been explained by the prosecution. According to Ex.PW-3/A prepared by Dr. Kuldeep Dhawan, the patient was brought by his friend Rahul. However, there is no mention of Rahul by PW-1. Rahul has not been examined. According to PW-3, the patient was discharged on 7.11.2000. However, as per case summary, the date of discharge is 10.11.2000. According to PW-2, they reached at PGI at 3.00 A.M. PW-1 was operated for 2-3 hours. According to PW-3, the patient was brought to PGI at 3.10 A.M. According to PW-7 Seva Singh, who has recorded the statement of PW-1, he reached Malhotra Clinic at 11.15 P.M. It took 40-45 minutes to arrange for the vehicle. He has recorded the statement of Sanjay Bhardwaj (PW-1) at 1.30 A.M. in Nalagarh Hospital. It took them 20-25 minutes to travel from Baddi to Nalagarh. According to him, it took 3 hours in recording statement of Sanjay Bhardwaj under sections 154 and 161 of the Code of Criminal Procedure and preparing the seizure memo. He has categorically admitted in his cross-examination that by the time he completed codal formalities, i.e. recording of statements, preparing of seizure memo etc., it was 7-8 A.M. Thus, it is not believable that PW-1 was brought to PGI at 3.10 A.M. and thereafter operated upon. On record, no referral slip was available. Though as per normal practice, referral slip was supposed to be on the record. It is also not believable that PW-1 was stabbed exactly on the spot when he was earlier injured on 21.12.1999.
There is another flaw in the case of prosecution. According to the F.I.R., the date of incident is 29.10.2000, however, in the complaint; the date of incident is 30.10.2000. In the statement made by the complainant, i.e. PW-1 Sanjay Bhardwaj before the Magistrate, the date of incident has also been mentioned as 30.10.2000. PW-1 Sanjay Bhardwaj has admitted that no application has been filed before the Magistrate to get the date of incident rectified. This variance about the date of incident in the F.I.R. and complaint has not been explained by the prosecution. It has great bearing on the outcome of the case. The alleged weapon of offence, i.e. knife allegedly used by accused S.S. Mago to stab the complainant PW-1 has not been recovered by the police. Though the clothes of PW-1 were recovered vide seizure memo Ex.PW-1/C, but the same were not referred to Forensic Science Laboratory. According to the doctors, who examined the complainant at Baddi and Nalagarh, no bleeding was found from the wound of the complainant. However, surprisingly, the doctor, who has examined the complainant at P.G.I. has stated that two handful of clots, i.e. 600 ml of blood alongwith 500 ml blood that means approximately more than one litre of blood was found in the peritoneum cavity. The prosecution has miserably failed to prove its case against the accused.
Accordingly, the learned trial court has rightly acquitted the accused and this court need not interfere with the judgment of the trial court. Consequently, in view of the observations and discussions made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged. No costs.