JUDGMENT
V.S. Kotwal, J.
1. Originally five accused were put up in the dock before the Additional Sessions Judge, Thane, for the office punishable under section 395 read with section 397 of the Indian Penal Code in Sessions Case No. 81 of 1976, for having committed jointly and committed act of dacoity and assaulted the complainant Maqbul on 20th April, 1975 at about 10.30 a.m. within the limits of Bhiwandi.
2. It was alleged by the prosecution that there was some enmity between the complainant Maqbul and five accused persons and in particular the accused persons had a grievance on account of the conduct of the complainant for remaining absent in Court when the proceeding was pending. On 20th April, 1975 at about 10.30 a.m. while the complainant was on his way to the factory five accused persons collectively rushed towards him and question him as to why he remained absent in Court on 17th instant where upon, the complainant replied that he did so as he had already engaged an Advocate and as such his presence was not felt necessary. It is thereupon that the accused indulged in abusing him in a flithy language. It was further alleged to the effect that the accused No. 1 was armed with a razor, while original accused Nos. 4 and 5 armed with sticks and the accused No. 3 was armed with an iron rod. It was then alleged that accused No. 1 Aspak hit the razor just above the forehead of the complainant causing a bleeding injury, accused No. 2 inflicted fist blow on his mouth. At that time the complainant had Rs. 210/- with him. It was alleged that accused No. 3 took out the said amount from the pocket of the complainant and gave it to accused No. 2 and thereafter, all the accused persons left the spot. The incident is alleged to have been witnessed by one Gyasuddin and 10 others witnesses. The complainant then approached the Bhiwandi Police Station where his complaint was recorded and he was taken to Bhiwandi Hospital for medical treatment. The police having been seized of the matter collected the evidence recorded the statement drew various panchanamas and after completing the same five accused person were charge-sheeted in the Court of Judicial Magistrate and on commitment they were tried in the Court of Sessions Judge, Thane for the said offences and the accused persons pleaded not guilty of the charge and have contended that they have been falsely implicated on account of enmity. Thus, the defence is one of total denial.
3. The learned Additional Sessions Judge, who conducted the trial rejected the prosecution case including the testimony of two eye-witnesses in so far as the part played by accused Nos. 1,3,4 and 5 as also to the aspect of injuries having been caused by means of a razor. He has also discarded the evidence regarding the allegation of snatching of the currency notes worth Rs. 210/-. He thus recorded an order of acquittal in favour the rest of the accused persons including accused No. 2 in so far as charge under section 395 read with section 397 is concerned. However, he qualified his order by holding that it was established by the prosecution that one fist blow was inflicted by the accused No. 2 on the face of the complainant thereby causing a simple injury and on the basis of that the learned Judge was pleased to hold accused No. 2 guilty of offence punishable under section 323 of the Indian Penal Code. On this finding, the said accused No. 2 was sentenced to suffer S.I. till rising of court and to pay a fine of Rs. 500/- in default to suffer R.I. for one month. The rest of the accused as indicated above, the were acquitted of all charges. It is this order that is being challenged in this appeal by accused No. 2, who is appellant in this appeal.
4. It appears that there is a delay of about 24 days in filling the appear therefore, at the time of the admission itself, a qualification was imposed that the appeal was admitted subject to bar by limitation. Therefore, the first question before entering into the merits of the case is as to whether delay should be condoned. It appears that the appellant while filling the memorandum of appeal has stated on affidavit that the appellant was seriously ill and bed-ridden for the past about six weeks and that he had come to this Court with great difficulty with the help of his relatives only on the date when the appeal was filed viz. 25th November, 1976 and on that ground he tried to explain the delay and prayed or for condonation thereof. It is true that there is no medical certificate attached to the memorandum of appeal or filed any time thereafter. However, the said statement was made on affidavit and there is no counter-affidavit on behalf of the police or state and as such I do not find any reason as to why the said explanation should not be accepted. I, therefore, feel that this is a proper case where delay should be condoned especially when the appellant has properly explained the same and also when the criminal liability arises out of the order passed against him by the Sessions court. I, therefore, decide that point in favour of the appellant and, therefore, this entitles me to examine the merits of the case.
5. I have gone through the judgment as well as the record and I have no hesitation to hold that the prosecution completely failed to establish the guilt of the accused beyond reasonable doubt. Unfortunately, the learned Sessions Judge had not applied his mind to the material aspect including some important documents and the approach adopted by the trial Court, with respect was not a proper one to be adopted in a criminal proceeding.
6. In so far as the main question is concerned, the prosecution relied on evidence of the two eye-witnesses viz. Gyasuddin, P.W. 2 and the victim, the complaint himself Maqbool Ahmad Haji Rajjaballi Husen Khan, P.W. 3. Corroboration is sought to be taken from other evidence viz. complaint Exhibit 14 and the medical evidence of Dr. Morde, P.W. 1, who is supported by the medical certificate Exhibit 9. The panchanama of the scene of offence has been merely produced by P.I. Joshi, who is examined as P.W. 4. who has claimed that both the panch witnesses were not traceable. As regards the presence of third alleged eye-witness Subraddin, the prosecution came forward with an excuse that he was also not traceable and the police indicated that he was absconding. These are all the evidence led by the prosecution.
7. I have already indicated the prosecution case in brief. Just to have a further resume, the complainant has deposed that there has been some enmity between him and the accused persons, a criminal case was still pending between the parties. He further says that on the date of the incident at about 10 a.m. or 10.15 am. while he was proceeding to the factory to join his duty as usual and while he was passing the house of Bapu Chuniwala within the, limit of Bhiwandi, all the accused persons surrounded him and immediately accused No. 1 caused an injury on his head above the forehead by means of a razor and the present appellant gave a fist blow on his nose, accused Nos. 4 and 5, according to the witness were armed with sticks but the weapons were not utilised. The witness further deposes that an amount of Rs. 210/- which was in his pocket was forcibly taken by the accused No. 3 and thereafter all the accused persons ran away. More or less on the same lines is the evidence of eye-witness Gyasuddin. However, I find that this evidence is discrepant and contains contradictions and infirmities. The infirmity that is foremost in this case is regarding the part played by accused No. 1. It is the positive case of the complaint as well as the eye-witness that accused No. 1 took out a razor and inflicted the said weapon on the forehead of the complaint causing a bleeding injury. The falsity of this account is exposed when we find from the medical evidence that no incised injury or a clean cut was noticed by the Medical Officer. On the contrary, Dr. Morde has clearly stated in his evidence as well as certificates that so far as the injury on the forehead concerned, he noticed a merely contused lacerated would just above the outer and of the left eye brow 1/4″ x 1/8″ muscle deep and that the said injury was caused by hard and blunt substance. It does not require any comment that the injury actually noticed by the Medical Officer would never have been caused by an instrument like a razor. In view of this position, it is clear that the account given by the witnesses on the most vital part of the incident is not only doubtful but is demonstratively proved to have been false. The eye-witnesses also contributed to this falsehood. It is true that this relates to the part played by accused No. 1 and not by the present appellant. However, the entire incident is an integrated one and which cannot be separated by disintegrated into different parts and therefore, infliction of any injury by means of a razor is in my opinion the most vital of the entire transaction. Therefore, when the witnesses are proved to be untruthfull on a very part of an incident which is to be an integrated one, then in my opinion, it is very hazardous to accept their evidence on other part. The learned Sessions Judge has rightly declared this incident so far as the part played by accused No. 1 is concerned. The matter, however, does not rest there. The evidence on other count is also not quite convicting. The complainant has stated in the examination-in-chief as to why all of a sudden promptly on their arrival all the accused persons started abusing him and the first accused took out a razor and inflicted an injury. Admittedly, the locality in question was busy and there was moving traffic on the road and several persons had collected there. It is, therefore, rather improbable to accept that there was no attempt on the part of any member of the public to intervene in the quarrel. The complainant has made out the case that after two blows-one by the razor and one by fist-were inflicted on his persons, accused No. 3 took out forcibly the currency notes Rs. 210/ and thereafter all the accused persons ran away. In other words he has not referred to as to what happened to the said notes after those have been removed by accused No. 3. As against this Gyasuddin, P.W. 2 has stated that on removal of the currency notes the accused No. 3 passed on the same to accused No. 2. The said witnesses has, therefore, gone a step further and tried to improve upon the prosecution case itself. Significantly no one has chased the accused persons nor were them apprehended immediately and further significantly no currency notes were recovered either from accused No. 3 or from the present appellant.
8. It is also pertinent to note, according to the complainant himself, the blow that was inflicted with first by the present appellant lended on the nose. In fact, he is better person to deposit to about it; instead we find that no injury has been caused to the nose as such as is evident from the medical evidence. Accused Nos. 4 and 5, though were armed with sticks had not utilised the weapons. This conduct is not explained especially when it was sought to be suggested that the accused in mood to assault the complainant. The incident is alleged to have been occurred, according to the complainant at about 10 to 10.30 a.m. The complainant then say that he went to hospital. However, he corrected himself by saying that he has first gone to the Police Chawki then to the Hospital and from Hospital again to the Police Station and it is thereafter perhaps according to him a complaint came to be recorded. As the records stands and in particular the evidence of P.I. Joshi to the effect that it was about 4 p.m. that he recorded the complaint of the complainant and this time lapse has not been explained by the complainant or by any of the witnesses. Contrary, this time element does not fit in which the prosecution case at all. It is also worthwhile to note that the complainant had in all sustained six injuries, all according to the medical evidence simple and minor even though on the prosecution evidence only two injuries were explained, one on the forehead and one on the face.
9. Though, I am not prepared to hold that the injury caused by the fist blow has been inflicted on the nose, there is no injury on the nose. However, assuming otherwise the prosecution have not explained as to how those four injuries came to be caused to the person of the complainant as according to the account given by the witnesses too there was absolutely no scope for causing those injuries. Therefore, this factor also goes against the prosecution. It is also difficult to accept that a powerful fist blow was inflicted directly on the face or the nose then normally more severe injury could have been caused and not the minor one as noticed by the Medical Officer.
10. The complainant has admitted that a criminal complaint is actually pending between him and the accused persons and there is a chapter case pending against the complainant are not clear there does appear some ultimate enmity between the complainant and the accused persons. The Panchanama of the scene of offence is not properly proved and I am not inclined to accept the explanation of P.I. Joshi that both the Panch witness are not traceable. In fact, for the purpose of establishing that feature also, proper evidence ought to have been led except the bare word of the Inspector himself. The weapons like razor, sticks or iron bar are not either discovered or traced. If the complainant had sustained a bleeding injury then normally there should have been blood stains imparted on the clothes, the clothes are not produced or attached. P.W. 2 Gyasuddin has given an entirely different version which is in conflict with that of the complainant. According to the complainant while he was passing by the said road, all the five accused came in group and immediately the assault commenced. As against this P.W. 2 wants us to believe that not only the complainant was passing from the otherside of the road when accused Nos. 1 and 3 only went near him and abused him and after hitting him dragged him across the road where the rest of the accused, present appellant and accused Nos. 4 and 5 were waiting on the other side and it is thereafter, the assault took place. Now the dragging theory is certainly out of imagination of the said witness, which also indicates that he has no regard for truth.
11. As I have already mentioned above that Gyasuddin, if he was really a witness present at the spot and had no interest in the complainant, he should not have made untruthful statement in that he also contributed to the falsehood given by the complainant that the accused No. 1 caused the injury by razor. His conduct is also not free from doubt. He has seen the incident from one spot throughout, standing at a distance of 10 spaces. I am really doubtful whether he could have noticed from such a distance particularly when he claimed that he had clearly seen moneys being removed from the pocket of the complainant. As already observed, the fact that the money had passed from the hands of accused No. 3 of the present appellant is not supported by the complainant. It is also worth while to note that on his own admission, he happened to be a close friend of the complainant’s brother and therefore, there is substance in the suggestion made by the defence that thought the intervention of the complainant’s brother his evidence has been prepared for the purpose of supporting the complainant’s case. It also appears that he was not present at the time of the alleged incident because he has claimed that he had gone to a hotel for enjoying a cup of tea and was returning to the factory and it is difficult to believe that at that very moment he could be present at the spot for seeing the incident when he could have been in the factory. As I have already indicated above, the learned trial Judge has discarded the evidence of the complainant as well as this witness on very vital point not only in respect of the other accused persons but also in respect of the present accused in so far as the element of dacoity is concerned. It is, therefore, not safe to accept the testimony of these two witnesses even for the limited purpose of holding offence under section 323 proved against the present appellant.
12. The matter does not rest there and there is still more series of infirmities in the prosecution. As I have already discussed above, there was a delay in lodging complaint. But there is another feature which has gone unnoticed by the trial Court. It is in the evidence that soon after the alleged incident, the complainant and his brother went to the police and immediately lodged an information which was treated as N.C. complaint and which was registered in the N.C. register. The defence has got the original of the record on perusal of the same, it emerges that the name of the present appellant much less the complexity in the present incident was not disclosed. In other words, only there names of the persons are mentioned in the complaint as being present. Therefore, the presence of the present appellant on the spot is not mentioned at all. In my opinion, this infirmity which unfortunately went unnoticed completely changes the complex and this is a very strong feature which should be held against the prosecution. I already indicated that the approach adopted by the learned judge is not proper in a case like this when the substantial part of the prosecution evidence has been discarded not only as being unbelievable but almost false. I am, therefore, disposed to take the view that no conviction could have ever been recorded under section 323 of the Indian Penal Code on the facts and merits of the case as the prosecution has completely failed to establish any offences including offence punishable under section 323 of the Indian Penal Code.
13. In view of this finding, it is not necessary to consider the legal aspect about the maintainability of this conviction not on facts but on consideration of the charge. It is significant to note that the charge is under section 395 read with section 397 of the Indian Penal Code and the ingredients of the said charge is robbery or dacoity. The learned Judge thus disbelieved the prosecution evidence. Therefore, four out of five accused have been acquitted holding that no such incident has occurred and therefore, the charge for vicarious liability can never be sustained. In other words, the alleged act attributed to the present appellant cannot be of any assistance. Secondly, there is no charge of any simpliciter act on the part of the appellant much less his having voluntarily caused simple hurt to the complaint. Section 323 envisages attempt in causing of death or grievous hurt. In my opinion, therefore, application of section 395 read with section 397 and by necessary implication of vicarious liability having been ruled out by the learned Judge, himself, the conviction for offence under section 323 simplicitor without specific charge in that behalf is thoroughly unsustainable in law as well. Therefore, on this count also, the conviction is liable to be set aside.
14. In the result, the appeal is allowed. The order of conviction and sentence recorded by the Additional Sessions Judge, Thane against the appellant in Sessions Case No. 81 of 1976 for an offence punishable under section 323 is hereby set aside. The appellant is acquitted of the said charge. Fine, if paid, be refunded.