JUDGMENT
Arun Kumar Goel, J.
1. This appeal is directed against the judgment passed by Judicial Magistrate 1st Class, Hiranagar on 13-5-1986 whereby respondents have been acquitted of the offences under Sections 323, 324, 392/109 read with Section 34 of the Ranbir Penal Code, for which offences all of them had been tried. Respondents 1 to 3 along with their father Jetha Singh were prosecuted and tried before the trial Court. Record of this appeal shows that during the pendency of the appeal Jetha Singh died.
2. In brief prosecution case against the respondents was that on 17-6-1981 Kulbhushan Singh, Salesman of Farmers’ Services Society (hereinafter referred to as complainant) was on his way from the office of Society which is situated at Kahna Chak, when he was in between Kahna Chak and Kandhey Chak, he was way-laid by the respondents but he somehow managed to escape. Again he was caught hold of by the respondents and was administered danda blow, kirpan blow and fist blows by the respondents. Not only this, but he is stated to have been dragged by the respondents and was tied with a Sheesham tree in the Sehan (courtyard) of Surinder Kaur, who later on cut the ropes and untied him. S/Shri Gurmukh Singh, Tarsem. Pappu and Parsidh Singh were the persons who reached the spot, but all of them were threatened by the respondents Respondents are further stated to have removed purse from the pocket of the complainant containing Rest. 9000/- while leaving when the complainant was tied with the tree.
3. After the complainant had been untied by Surinder Kaur, he took shelter in the nearby cattle-pen of Kartar singh where he became unconscious. Further case of the prosecution is that the complainant was removed in an injured state to the hospital where he regained conscious. On 19th June, 1986 statement of the complainant was recorded in the hospital vide Exp. A and his pent EXPI was also seized by the police vide recovery memo. Complainant was got medically examined by the police and after completion of the investigation challan was filed against all the accused persons numbering four before the trial Court.
4. On perusal of the challan papers, trial Court was satisfied that there is enough material to proceed against the respondents, as such charges under aforesaid sections of the RPC were framed against them, to which all the respondents pleaded not guilty and claimed trial. After the conclusion of the prosecution evidence, statements of the respondents were recorded under Section 342, Cr.P.C. who also led evidence in defence and finally trial culminated into the acquittal of the accused persons, hence this appeal.
5. Learned Government Advocate submitted that the prosecution has been able to bring home the guilt against the respondents and the evidence of the complainant coupled with other witnesses, particularly that of Gurmukh Singh, Sukhdev Singh and Tarsem Singh when read with that of the doctor clearly proved that it was the respondents who had committed the offences in furtherance of their common intention for the same. It was further urged that complainant having been robbed of Rs. 9000/- in addition to having been caused hurt with blunt and sharp-edged weapons stood also proved to the hilt and thus trial Court had fallen into error in not accepting the prosecution case thereby acquitting the respondents. In this background Shri Sharma urged for allowing this appeal and thereby convicting all the respondents.
6. In order to properly appreciate the submissions of the learned Govt. Advocate, prosecution evidence needs to be briefly discussed.
7. So far complainant and other prosecution witnesses are concerned, they are specific that Jagir Singh, respondent had inflicted one kirpan blow on the upper lip of the former. He has further gone on record to state that he was coming home after he had been dropped by Sukhdev Singh PW, when he was firstly caught hold of by the respondents but he saved himself and was again caught hold of after a chase by the respondents and was then injured. He is categoric that when injuries were being inflicted he raised noise but none turned up. However in the next breath he states that when he raised noise lot of people had gathered at the spot and his family members had brought him home from the cattle-pen of Kartar Singh. So far PW Gurmukh Singh is concerned, he claims to be asleep on the night of 17-6-1981. On hearing the noise his sleep was disturbed and he saw the complainant being dragged by the respondents and was tried with a Sheesham tree. At such time respondent Jagir Singh had a kirpan, wherein others were equipped with lathis. At such time according to this witness purse of the complainant was snatched by the respondents. Number of persons had gathered at the spot and the complainant was untied by Surinder Kaur daughter of deceased Jetha Singh-respondent around 4:00/5:00 a.m. This witness clearly denies enmity between him and respondent Jetha Singh and or the latter having deposed in any case either against him or his son. This witness is categoric about the fact that the complainant sustained kirpan injuries on his face and arm, and danda blows on his back. Statement of Parsidh Singh PW is also to the similar effect. Additional fact stated by this witness is that when he asked the respondents to desist, then Jagir Singh is stated to have asked his other co-respondents to tie the witness along with the complainant with the tree. On hearing this PW fled away. This witness claims that he along with Ram Krishan were sleeping side by side and while the complainant was being dragged to the house of Surinder Kaur, though there were 10/20 persons but none stopped the respondents. Sukhdev Singh is the other witness to had dropped the complainant at a distance of about Vi furlong from the shop of the Society and had returned. Next day the witness claims that while passing through Harichak he learnt about the incident as also about the fact that the complainant is admitted in the hospital. Witness came to Hiranagar Hospital and met the complainant. Tarsem Singh PW is the another witness who claims to have seen the respondents having dragged the complainant after he reached the spot on hearing the cries. He further claims to have seen Jagir Singh having caused an injury with Kirpan on the lip of the complainant whereas others be laboured the complainant.
8. In addition to these witnesses, Doctor S. K. Verma had examined the complainant on 18-6-1981 as per his medical certificate EXP. He found as many as eight injuries. Two of the injuries namely one on the upper lip and the other on the lower eyelid of right eye were opined by him to have been caused with a sharp edged weapon, whereas remaining six injuries were found to be simple in nature and having been caused by a blunt object.
9. In the context of oral and medical evidence it may be noticed here that complainant is specific that he was caused one injury with kirpan on his lip. Who caused the other injury on his eyelid of right eye with sharp edged weapon is not made out. Injuries in the opinion of the doctor had been caused to the complainant within twenty four hours on 18-6-1981 when he was examined. As per complainant he was way-laid and administered injuries around 9-10 PM on 17-6-1981, whereas doctor had examined him on 18-6-1981 at 10.30 a.m. within almost 12 hours.
10. In the instant case credibility of Gurmukh Singh and Tarsem Singh is also not free from doubt. When they were cross-examined, they instead of correctly answering declined that respondent Jetha Singh had appeared as a witness against Gurmukh Singh’s sons Balkar Singh in different cases. Besides this, Gurmukh Singh had also appeared as a witness against Jetha Singh respondent in a case under Arms Act. However respondents brought on record certified copies of the judgment in cases titled as “State v. Jetha Singh” to show that PW Gurmukh Singh had appeared in case under Arms Act that, was tried against Jetha Singh. Similarly Jetha Singh had appeared as a witness in a case under Section 376, RPC against Balkar Singh son of PW Gurmukh Singh. In addition to this respondent Jetha Singh had also appeared as a witness in a case of theft of watch against said Balkar Singh. This team of father and son had good reasons to depose against the respondents and has further made out that both these witnesses had not come out to state the true facts in Court.
11. There is positive evidence of P.W. 7 Dr. S. K. Verma as well as Medico Legal Certificates issued by him after examination of the complainant that the latter was examined on 18-6-1981. This clearly indicates that PW Kulbhusha Singh complainant was in a fit state to make the statement when he was examined by the doctor. But for reasons best known to the investigating agency no statement of the complainant was recorded on this date. There is no explanation for this omission. This is one aspect of the case.
12. Other aspect of the case is that as per complainant he regained consciousness in the hospital and his statement was recorded on 19th June, 1981. This further puts a question mark on the fairness of investigation of this case and thus I makes it doubtful. The possibility of cooking up of the story as well as recording of the statement of the complainant after deliberations cannot be ruled out in the facts and circumstances of this case.
13. Similarly there is no legal evidence on record to show that the complainant was intact possessed of Rs. 9000/- of which sum he claims to have been robbed by the respondents. Best evidence in this behalf would have been record of Farmers’ Services Society, particularly cash memo etc. to show that on the date of occurrence the goods of the value of Rs. 9000/- had infact been sold and this amount was taken by the complainant along with him while leaving for his residence at night. Again no attempt appears to have been made by the investigating agency to collect such evidence.
14. The case of the prosecution also suffers from other infirmities, which when examined in the light of above facts do not call for any interference in the present appeal. In addition to this it also cannot be said on examination of the evidence that the view taken by the trial Court is otherwise perverse or was not one of the two possible views.
15. In view of the aforesaid discussion there is no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondents are ordered to be discharged.