PRASHANT KUMAR AGARWAL,J. - (1.) The accused-appellant-Shri Amar Lal has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 25.10.2013 passed by the Additional Sessions Judge, Baran in Sessions Case No.260/2011 whereby the learned trial Court after holding the appellant guilty for offence under Section 452 I.P.C. sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default thereof to further undergo simple imprisonment for one month, for offence under Section 326 I.P.C. he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for one month, for offence under Section 327 I.P.C. he was ordered to suffer rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for one month and also holding appellant guilty for offence under Section 307 I.P.C., awarded him rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to suffer simple imprisonment for one month. It was further directed by the trial Court that all the substantive sentences would run concurrently. It is to be noted that trial Court acquitted co-accused-Shri Chhotulal and Jodhraj for the offences for which they were charged. It is further to be noted that complainant/victim Shri Omprakash has filed aforesaid S.B.Criminal Appeal No.821/2013 under proviso to Section 372 Cr.P.C. challenging the acquittal of co-accused and a prayer has also been made by him that adequate amount of compensation may be awarded to him from appellant-Shri Amarlal. With the consent of learned counsel for the parties, the aforesaid appeal filed by the victim-Shri Omprakash to the extent of his claim of compensation from accused-appellant-Shri Amarlal was also heard along with the accused's appeal and both the appeals are being decided by this common judgment/order.
(2.) Brief relevant facts for the disposal of these appeals are that written report Ex.P3 was submitted by Shri Yogesh Gupta, son of injured Shri Omprakash Gupta, on 21.7.2007 at 3.00 p.m. at Baheti Hospital, Kota where injured-Shri Omprakash Gupta was undergoing his treatment before Assistant Sub-Inspector of Police Shri Nand Singh Police Station Baran Sadar in which it was alleged that on 20.7.2007 at about 6.00 p.m. in the evening when he and his father, mother, brother and sister were sitting inside their house, accused-appellant-Shri Amarlal armed with an axe along with acquitted-accused-Shri Jodhraj and Shri Chhotelal suddenly entered into their house and after abusing them appellant-Shri Amarlal said that as a result of a report lodged against them they were forced to incurr an expense of Rs.10,000/- and, therefore, the aforesaid amount is required to be paid to them by the complainant's father and when his father refused to oblige them, the acquitted co-accused-Shri Jodhraj and Shri Chhotelal caught his father and appellant-Shri Amarlal made a blow on his head by axe with intention to cause his death as a result of which his father sustained a grievous injury. It was further alleged in the report that appellant also caused injury to his mother by axe. In the report it was also alleged that as the injury of his father was very serious, he was immediately taken to a doctor who referred him to Kota after observing that the injury is very serious upon which he brought his father to Kota and he was busy in his treatment, therefore, some delay has been caused in lodging the report. On the basis of this written report, FIR No.108/2007 came to be registered at Police Station Sadar, Baran on 21.7.2007 at 10.15 p.m. against the accused-persons for offences under Sections 452, 307, 327 read with Section 34 I.P.C. and investigation commenced. After usual investigation charge-sheet was filed against the appellant and the acquitted accused and in order to prove the charges, prosecution produced oral as well as documentary evidence. Appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and specifically stated that he has falsely been implicated in the case by the reason that there was some dispute between complainant and a contractor. It is to be noted that nature of dispute was not disclosed. In defence as many as four documents were got exhibited. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence made available on record convicted and sentenced the appellant as already stated whereas both the co-accused were acquitted. Learned trial Court did not consider the question to award compensation to the victim for the injury suffered by him.
(3.) In support of the appeal, learned counsel for the appellant raised the following grounds:- (1) The incident is of 20.7.2007 at 6.00 p.m. whereas written report was lodged on 21.7.2007 at 3.00 p.m. at Baheti Hospital, Kota and for the delay so made for lodging the FIR no plausible explanation has been furnished by the prosecution. It is well settled legal position that if FIR for a criminal incident is lodged with a delay without furnishing reasonable and sufficient explanation for the same, the entire incident becomes suspected and accused is entitled to get benefit of doubt. In the present case, the only reason furnished is that the complainant was busy in the medical treatment of his father injured-Shri Omprakash in the hospital but the same cannot be said to be sufficient in view of the fact that several other members of the family were available to lodge the report immediately. The delay further becomes doubtful by the reason that although formal FIR was registered at Police Station Baran Sadar on 21.7.2007 at 10.15 p.m., copy of the FIR was sent to the concerned Magistrate on 23.7.2007 at 11.00 a.m. for which also no explanation has been furnished by the Investigating Officer. (2) In order to prove the incident no independent witness was produced and only family members of the injured, who are highly interested witnesses, were produced and it was not safe to hold the appellant guilty for such serious offences only on the basis of evidence of such witnesses more particularly in view of the fact that the injury report is also doubtful. (3) As per the proceedings drawn on the written report Ex.P3, medico legal report of injured-Shri Omprakash and Smt. Sita Bai were got separately prepared i.e. these reports were prepared before FIR was registered but during the course of trial these reports were not produced and deliberately withheld and, therefore, adverse inference must be drawn against prosecution to the effect that if the same were produced during trial, they would have gone against prosecution at least to about nature of injuries found on the body of these injured persons. (4) As per the written report it is also an admitted fact that soon after the incident injured-Shri Omprakash was taken to a local doctor and looking to his serious condition he referred him to Kota for further treatment which fact shows that the local doctor also prepared prescription and reference letter mentioning the injuries of Shri Omprakash but the prescription and referring letter were also deliberately withheld during trial and, therefore, adverse inference must be drawn against prosecution on this account also to the effect that if these documents would have produced during trial the same would have gone against it regarding nature of injury found. (5) Court statement of injured-PW5-Shri Omprakash cannot be relied in view of his admission that his statement under Section 161 Cr.P.C. was not recorded during investigation whereas according to investigating officer injured-Shri Omprakash was examined and his statement was also recorded. (6) The incident becomes doubtful by the reason that as per prosecution case only one below with axe was made by the appellant on the head of injured-Shri Omprakash whereas as per his injury report Ex.P9, which has been prepared by PW1-Dr. Arun Kumar Sharma, two injuries were found on his head and no explanation has been furnished how two injuries were caused by one blow by axe. (7) Injury report Ex.P9 and opinion given by Dr. Arun Kumar Sharma regarding nature of injury No.1 as grievous and dangerous to life becomes further doubtful by the reason that it has not been explained by prosecution on what basis and on whose order Dr. Sharma, who at the relevant time was posted as Medical Jurist at MBS Hospital, Kota, went to Baheti Hospital, Kota, a private hospital, where injured-Shri Omprakash was undergoing treatment and examined him. In absence of such explanation report Ex.P9 and the aforesaid opinion in the form of Ex.P11 is not admissible in evidence more particularly in view of the fact that x-ray report was not available at the time when opinion was given and original surgical and clinical notes prepared by PW15-Dr. Mamraj Agarwal of Baheti Hospital, Kota were not available with Dr. Arun Kumar Sharma. (8) Although, it is the stand of investigating officer that on the information and at the instance of appellant an axe was recovered by him during investigation but in absence of blood stains and FSL report, it cannot be said that the recovered axe was used by the appellant to inflict injury to injured-Shri Omprakash and his wife-Smt. Sita Bai. (9) Investigating Officer PW16-Shri Nand Singh in his examination-in-chief has said that on 24.7.2007 opinion of doctor was taken regarding nature of injury and on 21.7.2007 injured-Shri Omprakash and Smt. Sita Bai were got medically examined by him but he has not further stated that he took Dr. Arun Kumar Sharma from MBS Hospital, Kota to Baheti Hospital, Kota for their examination and in absence thereof also the injury reports prepared by Dr. Sharma and his opinion regarding the nature of injury is not admissible in evidence. (10) Once co-accused were acquitted by the trial Court on the same set of evidence, on the same set of evidence appellant could not have been convicted. The appellant is also entitled to get benefit of doubt. (11) If this appellate Court anyhow confirms the conviction of the appellant, looking to the fact that the appellant has already served four years of imprisonment, the sentence for offence under Section 307 I.P.C. may be reduced to the period of imprisonment already undergone by him. (12) So far as award of compensation to the injured-Shri Omprakash from appellant is concerned, in absence of proper material and more particularly in absence of paying capacity of appellant, no compensation can be awarded first time in this appeal. Otherwise, this Court may award a reasonable amount looking to the facts and circumstances. (13) As per the site map and site inspection report Ex.P4 prepared by the investigating officer during the course of investigation, blood stains were found outside the house of complainant-party near a chabutary which shows that appellant did not enter the house of complainant and in fact the alleged incident occurred, if at all, outside their house and, therefore, offence under Section 452 I.P.C. is not made out but learned trial Court did not consider this aspect of the matter also in a right perspective. On the other hand, learned Public Prosecutor supported by learned counsel for the complainant controverting the submissions made on behalf of the appellant submitted that there is ample evidence available on record showing involvement of appellant in the incident and causing injuries to both the injured with an axe and the impugned judgment is not liable to be interfered on the basis of any of the ground raised on behalf of the appellant more particularly in view of the fact that the findings have been arrived at by the trial Court after properly appreciating and evaluating the evidence available on record. It was further submitted that appellant is a habitual offender involved in several similar cases and, therefore, leniency may not be taken to reduce the sentence awarded by the trial Court. It was also submitted that as per sub-section (3) of Section 357 Cr.P.C. appropriate compensation is required to be awarded to both the injured from appellant as trial Court failed to award it.;