PRASHANT KUMAR AGARWAL,J. - (1.) The accused-appellant by way of this Criminal Appeal under Section 374 Cr.P.C. has challenged the judgment of conviction and order of sentence dated 29.11.2016 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran in Sessions Case No.133/2016 whereby the learned trial Court after holding the appellant guilty for offence under Section 323 I.P.C. sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.500/- and in default thereof to further undergo simple imprisonment for one month and also convicting him for offence under Section 307 I.P.C. sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,500/- and in default thereof to further suffer simple imprisonment for six months. It was also ordered that if the amount of fine is deposited by the appellant, an amount of Rs.50,000/- would be paid to the victim Shri Manak Chand as compensation under Section 357 Cr.P.C. and the remaining amount of Rs.500/- would be deposited in exchequer. It was further directed that both the substantive sentences would run concurrently.
(2.) Brief relevant facts for the disposal of this appeal are that Shri Satyanarayan (PW1), brother of injured victim-Shri Manak Chand (PW3) on 31.3.2013 at 11.25 p.m. submitted a written report (Ex.P1) before Police Station Anta (District Baran) alleging therein that on 21.3.2013 at 10.15 p.m. when his brother Shri Manak Chand Meena along with Shri Pradeep, Shri Pappu and Shri Lekhraj was watching TV at the shop of Shri Nand Kishore Meena, appellant came there on a motorcycle and with intention to cause death of his brother inflicted four injuries on his head with an axe and them he fled away from the place of incident on his motorcycle. It was further averred in the report that his father, uncle-Shri Chaturbhuj, Shri Vidyaratan, Shri Lekhraj etc. brought his brother in the jeep of Shri Bharat Prakash Galav to CHC Anta and the doctor finding the condition of brother serious referred him for further treatment to Kota. On the basis of this report, FIR No.91/2013 was registered for offences under Sections 307 and 323 I.P.C. at Police Station Anta (Baran) and investigation was undertaken. During the course of investigation injured-Shri Manak Chand was medically examined, statements of witnesses were recorded under Section 161 Cr.P.C., appellant was arrested and at his instance an axe allegedly used in the incident was recovered and after usual investigation charge-sheet for offences under Sections 307, 323 and 325 I.P.C.F was filed against the appellant. Charge for aforesaid offences was accordingly framed against the appellant and in order to prove the same, 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 due to previous enmity he has falsely been implicated but in defence no evidence was produced. 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. It is to be noted that he was acquitted for offence under Section 325 I.P.C.
(3.) In support of the appeal, learned counsel for the appellant raised the following grounds:- (1) It is an admitted fact that complainant-informer-PW1-Shri Satyanarayan, brother of injured Shri Manak Chand, is not an eyewitness of the incident and he lodged the written report either on the basis of information furnished to him by wife of Shri Hariom or by Shri Vidyaratan, but during trial neither of them was produced as witness and in absence thereof it cannot be said that report was lodged by Shri Satyanarayan on the basis of information received from either of them and when the source on the basis of which the report was lodged is not clear, by raising adverse inference against the prosecution it must be held that the entire prosecution case has become suspect and doubtful. It is well settled legal position that in a criminal case the first information report is an important and relevant document on which the entire edifice of prosecution case stands and when such edifice is missing, the entire prosecution case is doubtful and suspect. (2) As per prosecution case at the time of alleged incident Shri Pradeep, Shri Lekhraj, Shri Chandra Prakash, Shri Pappu and Shri Nand Kishore were present and it was claimed that they are eyewitnesses of the incident but during trial they did not support the prosecution case and were declared hostile and accordingly it was not safe to convict the appellant for such a serious offence solely on the basis of statement of injured-Shri Manak Chand more particularly looking to the previous enmity between them and also looking to the fact that there are several material and important improvements, contradictions and inconsistencies in the statement of the injured but learned trial Court did not consider this aspect of the matter in a right perspective. (3) Injured PW3-Shri Manak Chand in clear words has claimed that injuries were caused to him by using sharp side of the axe whereas as per the injury report all the injuries on his head were found to be caused by a blunt weapon and this fact alone is sufficient to doubt his sole evidence. Material contradiction is also in the statement of the injured about the fact whether blow was made on his head from behind or from front side. The injured in the initial part of his statement has stated that blow was made from behind whereas in the later part of the statement it was said by him that injury was caused to him from front side. (4) As blood was not found on the axe recovered at the instance of appellant during investigation, it cannot be said that the recovered axe was used by him to cause injuries to injured and in absence of connection between the recovered axe and the injury found on the body of the injured, the prosecution story becomes more suspect and doubtful. Possibility cannot be ruled out that appellant was falsely implicated in the case by the reason that prior to the present incident a case for offence under Section 307 I.P.C. was registered against injured-Shri Manak Chand at the instance of appellant and in order to pressurise the appellant and to save himself the injured falsely implicated the appellant leaving out the actual offender. (5) In absence of evidence of Dr. Ramesh Malav (Radiologist), who prepared the x-ray and CT-Scan report of injured, only on the basis of statement of PW9-Dr. Vijayendra Nath Tiwari, Medical Officer, CHC Anta, injury Nos.2 and 3 cannot be held to be grievous in nature and dangerous to life. Although, Dr. Tiwari has opined that the aforesaid injuries were grievous in nature and dangerous to life but it was Dr. Ramesh Malav who undertook CT-Scan and x-ray of the injured and it was necessary for the prosecution to produce him as witness during trial more particularly in view of the admission made by Dr. Tiwari in his cross-examination that as all four injuries were already stitched, he is not in a position to state about the nature of these injuries. PW9-Dr. Tiwari was not having first hand knowledge of the injuries found on the head of the injured as it is an admitted fact that immediately after the incident he was admitted for his treatment in Sudha Hospital, Kota and none from that hospital also was produced as witness during trial. Incident is of 21.3.2013 whereas injured was examined by Dr. Tiwari first time on 30.3.2013 and, therefore, in absence of nature of treatment meanwhile given to injured and the reports prepared in this regard, opinion of Dr. Tiwari has no evidenciary value.;