- (1.) The accused-appellant has preferred this criminal appeal under Section 374 Cr.P.C. against the judgmenet of conviction and order of sentence dated 27.03.1992 passed by the Special Judge (Dacoity Affected Area) Bharatpur in Sessions Case No.60/1991 whereby the learned trial Court has convicted the appellant for offence under Section 326 IPC and sentenced him for rigorous imprisonment of three years and a fine of Rs.1,000/- and in default thereof, to further suffer simple imprisonment for six months. It is to be noted that co-accused-Shri Hakim Singh has been acquitted from the offences under Sections 307/34 and Section 323 IPC.
(2.) Brief relevant facts for the disposal of this appeal are that on the basis of "Parcha-Bayan" of injured-PW2-Shri Chandan Singh, FIR No.189/1991 came to be registered at Police Station Sewar (District Bharatpur) on 26.04.1991 in which it was alleged that on 23.04.1991 at about 9.30-10.00 a.m. when the complainant-injured was in his field and was sitting under the tree of 'Babool' at that time accused-appellant-Shri Rajan was cutting the tree of the complainant which was objected by the complainant on which the appellant went to his house and after some time he came back alongwith his father-Shri Hakim Singh-the acquitted accused and the appellant inflicted an injury on the head of the complainant by an axe. It was further averred that acquitted accused-Shri Hakim Singh also inflicted injuries to the wife of the complainant. It is pertinent to note that the "Parcha-Bayan" of the complainant was recorded on the date of incident i.e. on 23.04.1991 at about 2.10 p.m. when he was under treatment in Male Surgical Ward Bad No.26, General Hospital, Bharatpur, however, the formal FIR No.189/1991 for the offence under Section 324 IPC was registered on 26.04.1991 when injury and x-ray report were obtained. During investigation evidence was collected and charge-sheet was filed against both the accused. Accused-appellant Shri Rajan was charged for the offence under Section 307 IPC whereas acquitted-accused-Shri Hakim Singh was charged for the offence under Section 307 read with Section 34 and for offence under Section 323 IPC. To support the charges, prosecution produced oral as well as documentary evidence whereas the accused denied the allegation and the evidence of the prosecution and specifically stated that they have been falsely implicated by the reasons as stated by them. In defence, statement of DW1-Shri Avtar Singh was recorded. The learned trial Court after hearing the parties and evaluating and appreciating the evidence available on record passed the impugned judgment and order.
(3.) Assailing the appellate judgment and order, the learned counsel for the appellant has raised the following grounds:- (1)Admittedly, the incident is of 23.4.1991 whereas formal FIR has been registered on 26.4.1991 and no explanation has been given on the part of the prosecution regarding the delay made for registration of the FIR and the same makes the whole prosecution story doubtful and it is liable to be discarded entirely. (2) Only interested eye witnesses have been produced to support the statement of the injured-complainant, who are not reliable more particularly in view of the fact that they have not been named as witnesses of the incident in the "Parcha-Bayan." (3) Even the statement of the injured-complainant PW2-Shri Chandan Singh is not reliable as he has made several improvements from the first version of the incident and there are several material contradictions, discrepancies and inconsistencies, in his statement recorded during trial in comparison to the version of the incident as narrated in the "Parcha-Bayan" as well as in his statement recorded under Section 161 Cr.P.C. From the evidence available on record it is clear that prior to the alleged incident there was dispute between the parties regarding a piece of land and, therefore, possibility of false implication of the appellant cannot be ruled-out. (4) On the basis of self same evidence co-accused-Shri Hakim Singh has been acquitted by the trial Court itself assigning reasons in support thereof and, therefore, it would not be safe to held the appellant guilty on the basis of the same evidence. (5) Several material investigative errors and lapses have been committed by the investigating officer more particularly he did not make inspection of the site and, therefore, benefit of doubt is to be granted to the appellant for the lapses on the part of the investigating agency. No steps were also taken by the investigating officer to collect blood stained soil from the place of incident. (6) Although, the injury report Ex.P6 appears to have been prepared on the date of incident itself i.e. 23.04.1991 and duration of the injury has also been opined to be within a period of six hours and x-ray report was prepared on 24.04.1991 but PW8-Dr.Umesh Mangal in his cross examination has admitted that the fracture found could be of a period within a month. He has further admitted that the injury found on the head of the injured could be caused if his head comes in contact with a hard surface. In the light of admissions made by this material witness, possibility cannot be ruled out that the injured-complainant received head injury some other time and place, but due to previous enmity it has been attributed to the appellant. (7) PW6-Dr.Bhopal Singh has given contradictory statement regarding the fact whether the head injury was sufficient to cause death in the ordinary course of nature and, therefore, the statement of this witness is of no evidentiary value and it has to be discarded entirely. (8) The incident is of the year 1991 and the appellant at that time was of the age of 18 years and the appeal is pending since 1992 and the appellant has already undergone some part of the sentence and, therefore, it would be in the interest of justice if the sentence is reduced and modified to a reasonable extent and more particularly to the period already undergone by him.;