CHAUHAN, J. - (1.) THE appellants have challenged the judgment dated 30. 01. 1986 passed by Additional Sessions Judge No. 1, Alwar whereby the appellant No. 1, Ram Niwas, has been convicted for offence under Section 326 of Indian Penal Code (for short, 'ipc')and has been sentenced to four years of rigorous imprisonment and imposed with a fine of Rs. 500/- and to further undergo a sentence of six months' simple imprisonment in default thereof. THE appellant No. 2, Gheesa Ram, has been convicted of offence under Section 324 of IPC and has been sentenced to fine of Rs. 500/- and to further undergo six months of simple imprisonment in default thereof. Appellant No. 3, Ram Charan, although has been convicted of offence under Section 323 of IPC, but has been granted the benefit of probation.
(2.) BRIEFLY, the facts of the case are that for an incident which allegedly occurred on 14. 01. 1983, Kedar Lal Sharma (P. W. 1) lodged a report (Ex. P. 1) on 17. 01. 1983 at Police Station Kherli. According to the report, "on the morning of 14. 01. 1983, one Babulal Brahmin came to his house and told him that the goats belonging to the appellant No. 1 had entered into his farm and they were grazing there. Upon this information, the complainant went to his farm, where he found the appellants grazing their goats there. When he told the appellants not to graze their goats, a verbal altercation occurred between the parties. The appellants tried to assault the complainant, but he fled from there. Later on, in the evening, around 5:00 PM, while the complainant was working on his thresher, Gheesa Ram, Ram Charan, Ram Niwas, Sumartha, Chaju Ram came to his house. These persons were carrying lathis, Farsi (axe), sword etc. They all shouted "kill him, kill him" and started to beating him. Ram Niwas hit him over the head with axe. Rest of the peresons hit him with lathis. Gheesa hit him on the right shoulder with tabbal (a blunt weapon ). Hearing his hue and cry, Babu rushed to rescue the complainant. Babu was also assaulted by the appellants. Ram Singh also rushed to rescue the complainant, but he was also assaulted by the appellants. Kishori and Raghuveer intervened and rescued the complainant. On the basis of this report, a formal FIR, FIR No. 6/83 (Ex. P/2,) was chalked out for offences under Sections 147, 148, 149, 324 and 326 of IPC. Since, the learned trial Court was of the view that the appellants could be charged for offence under Section 307 of IPC, the case was committed to the Sessions Court vide its order dated 30. 08. 1983. Subsequently, the appellants were charged for offences under Sections 147, 148, 447, 307, 326 307/149, 326/149, 324, 323, 323/149 of IPC. In order to prove its case, the prosecution examined nine witnesses and submitted ten documents. On the other hand, the defence examined a single witness and submitted four documents. After going through the oral and documentary evidence, the learned trial Court acquitted the co-accused persons, Sumartha and Chaju Ram, but convicted the appellants as aforementioned. Hence, this appeal before this Court. Mr. Vijyant Nirwan, the learned counsel for the appellants, has raised the following contentions before this Court : firstly, although the occurrence occurred on 14. 01. 1983, the FIR was lodged on 17. 01. 1983. Thus, there is an inordinate delay of three days. The said inordinate delay by the prosecution clearly points to the fact that the complainant has falsely implicated the appellants. Secondly, although the appellants have also suffered injuries on their bodies, including a grievous injury, the same has not been explained by the prosecution. In fact, Kedar (P. W. 1), Ram Sing (P. W. 2) and Raghuveer (P. W. 4) denied the existence of injuries on the appellants. Thus, these witnesses are not trustworthy. Thirdly, the prosecution has withheld the genesis of the occurrence. For, the learned trial Court has disbelieved the prosecution on the point that the appellants criminally trespassed and has acquitted the appellants for offence under Section 447 of IPC. Fourthly, it is the complainant, who was the aggressor, who had caused the injuries on the appellants and in order to defend themselves, the appellants had assaulted the complainant and his party. Thus, he has pleaded the right of private defence. Lastly, the injuries suffered by Kedar on the head has not been caused by a sharp edged weapon but has been caused by blunt weapon. Thus, no offence under Section 326 IPC is made out. Considering the fact that this was the first offence committed by the appellant, Ram Niwas, therefore, he should be granted the benefit of probation. On the other hand, Mr. Aurn Sharma, the learned Public Prosecutor has raised the following contentions : firstly, the prosecution has explained the delay in lodging the FIR. Thus, the delay of three days is not fatal to the prosecution case. Secondly, the learned trial Court itself had not believed that the injuries caused to the accused persons and had doubted the veracity of the injury report (Exs. D-3 & D-4) of the appellants. Hence, there was no need for the prosecution to explain the injuries caused to the appellants. Thirdly, according to Dr. M. K. Singhal (P. W. 5), the injury caused to Kedar can be caused by an axe. Therefore, the offence committed by Ram Niwas is squarely covered under Section 326 of IPC. Lastly, Ram Niwas, and others had come armed with lethal weapons and had attacked both the complainant and even those persons who rushed to his rescue. The appellant No. 1, Ram Niwas, therefore, does not deserve the benefit of probation. We have heard the learned counsel for the parties, have perused the impugned judgment and have examined the record. According to Mr. Nirwan, Kedar (P. W. 1) does not explain the delay in lodging of the FIR, in his examination-in -chief. In fact, though he is required to give some explanation about the said delay, but he has maintained studied silence on this entire issue, in his examination-in -chief. However, in his cross- examination he admits that while he has being taken to the hospital, a police station was nearby. But he claims that he did not lodge the report as he was not keeping well. He has further stated, in his testimony, that even upon returning to the village, he did not lodge the report. The learned counsel has challenged the veracity of this statement on the ground that according to Dr. M. K. Singhal (P. W. 5), when Kedar was examined, his blood pressure was normal and he was in perfect health. Thus, according to the learned counsel, the explanation given by Kedar that he was not keeping well, is merely an excuse and not a justification.
(3.) IN order to buttress his arguments that delay in loading the FIR leads to certain inference which should be drawn by the Court, the learned counsel has relied upon Lakshmi Singh & Ors. vs. State of Bihar (AIR 1976 SC 2263 ). Moreover, he has argued that in catena of cases, the Apex Court has held that when the delay is not explained, the delay is fatal to the case of the prosecution. The contention raised by Mr. Nirwan is not tenable for the following reasons : firstly, merely because the doctor states that the patient was having normal blood pressure and normal pulse rate and was in good health would not imply that the injured was feeling well enough to report the matter to the police. A sudden attack that too with lethal weapons might have shacken Kedar to the point that he was neither psychologically nor physically able to report the incident to the police. It is true that other injured persons especially those who had accompanied him with the hospital, could have reported the case to the police. But, considering the fact that injured had been taken to Laxmangarh and Alwar, they may have hesitated to report to the police as the police station did have the territorial jurisdiction where the incident had taken place. Secondly, the inference of false implication is untenable. Thirdly, when the appellants have raised the plea of private defence, they are, in turn, admitting that the occurrence had occurred where the complainant party was also injured. Hence, the plea of false implication, or the plea that the delay in loading the FIR should lead to certain inferences looses its significance. Therefore, the contention raised by Mr. Nirwan is unacceptable. Of course, it is essential for the prosecution to explain the injuries caused to the accused persons. However, such an explanation is required when the injuries are grave in nature. In case, the injuries are simple, or superficial, or which are likely to be self-inflicted, then the prosecution is not required to explain the said injuries suffered by the accused. According to injury report (Ex. D/3) of Sumartha, the grievous injury is on his left forearm. This injury report has been proven by Dr. Sriram Meena (D. W. 1 ). According to his report, injury No. 1 had a fracture and thus was grave in nature. However, the learned trial Court has rightly noted that the injury report is dated 18. 01. 1983 i. e. , it is delayed by four days. The learned counsel has emphasized the fact that according to the injury report, the grievous injury suffered by Sumartha is said to be four to five days old. Therefore, the said injury occurred on 14. 01. 1983. However, such a plea is also unacceptable. For, the duration of the injury is merely an approximation made by the doctor. Such an approximation can never be mathematically accurate. Therefore, it cannot be concluded that the injury was caused by the complainant party and occurred on 14. 01. 1983. Since a distinct possibility does exist that the said injury may have been caused after the incident, the prosecution need not have explained the said injury. Hence, the non-explanation of the said injury does not dilute the case of the prosecution. ;