M.R.VERMA

(1.) This appeal is directed against the judgment dated 27-4-1995 passed by the learned Judicial Magistrate Ist Class (2), Nurpur whereby the accused-respondents (hereinafter referred to as 'the accused') have been acquitted of a charge under Ss. 147, 323/149, 324/149, 325/149, IPC.

(2.) Case of the prosecution, in brief, is that on 25-5-1992 at about 7-30 p.m., accused Rakesh Kumar alias Pappu had a quarrel with Ranjit Singh (PW-2) at Dhaneti Bhurian. the cause of quarrel was that accused Rakesh Kumar suspected that said Ranjit Singh had committed theft of his bicycle. PW. Ranjit Singh questioned accused Rakesh Kumar as to why he was accusing him of theft of the bicycle whereupon the accused caught hold of him from the neck and the quarrel ensued. PW-1 Ram Singh, the complainant also reached on the spot. In the meanwhile, accused other than Rakesh Kumar also came on the spot and assaulted the complainant party, as a result whereof, PW-1 Ram Singh, PW-2 Ranjit Singh and Satish Kumar son of Ranjit Singh sustained injuries. After the occurrence, accused persons bolted away from the place of occurrence. PW-1 Ram Singh reported the occurrence to the police vide rapat rojnamcha Ex. PW-6/A on the basis of which FIR Ex. PW-1/B came into being at Police Station, Nurpur. Injured Ram Singh, Ranjit Singh and Satish Kumar were medically examined by PW-5 Anil Mahajan and he issued the MLCs about their medical examinations which are respectively Ex. PW-5/A, Ex. PW-5/B and Ex. PW-5/C. As per MLC Ex. PW-5/A, PW-1 Ram Singh had sustained as many as 6 injuries out of which 5 were simple and one was grievous. Vide MLC Ex. PW-5/B, four simple injuries were found on the person of Ranjit Singh (PW-2). Vide MLC Ex. PW-5/C, two simple injuries were found on the person of Satish Kumar. During investigation, blood stained clothes of PW-1 Ram Singh were taken in possession by the police vide memo Ex. PW-1/A. A Sangha was also taken in possession by the police on production by PW-2 Ranjit Singh which is alleged to have been snatched by Ranjit Singh at the time of quarrel vide memo Ex. PW-2/B. One drat Ex. P-1 was also taken in possession by the police vide memo Ex. PW-2/A on production by PW Ranjit Singh who allegedly came to possess it after having snatched it from the accused at the time of the quarrel. On being satisfied of the commission of offences under Ss. 147, 148, 324, 325 and 323, IPC by the accused persons, the officer incharge, Police Station, Nurpur submitted a charge sheet against them.

(3.) To prove the charge against the accused persons, prosecution examined 8 PWs.

(4.) Accused were examined under S. 313, Cr. P.C. and from the answers recorded to the questions put to the accused persons, they have denied the prosecution case and have claimed that they have been falsely implicated in the case. Accused led defence and examined DW-1 Anil Mahajan who proved the MLCs Ex. DW-1/A and Ex. DW-1/B

about the medical examination of Jeet Singh and Rakesh Kumar accused respectively.

(5.) The learned trial Magistrate found that the charge against the accused was not proved and accordingly acquitted them of the charge against them. Hence the present appeal.

(6.) I have heard the learned Addl. Advocate General for the appellant and Ch. Rakesh Jaiswal, who appeared on behalf of learned counsel for the accused and have gone through the record.

(7.) It may be pointed out at the very outset that the manner in which the statements of the accused persons under S. 313 Cr. P.C. had been recorded by the learned trial Magistrate leaves much to be desired. In the statement of accused Jeet Singh under S. 313, Cr. P.C., answer to question No. 18 has not been recorded. In the statement of accused Tilak Raj. answer to question No. 3 has not been recorded. In the statement of accused Ganesh Chand, answers to question Nos. 5 to 8 and 18 have not been recorded. There is nothing on record to show that the accused refused to answer these questions. Therefore, the question arises as to whether the case should be remanded for completion of the statements of the aforesaid accused persons under S. 313, Cr. P.C. Be it stated that the case against the accused persons was registered more than 7 years before. It was decided by the trial Court more than 4 years before and this appeal is now pending disposal for more than 3 years. Against this background, it will not be proper to remand the case for supplying the omissions at this belated stage. Whatever answers have been recorded in the statements under S. 313, Cr. P. C. the overall picture which emerges there-from is that the accused persons claim that they have been falsely implicated in the case.To remove the ambiguity which is caused by the non-recording of the answers of the accused persons to a few questions as stated hereinabove, the contents of para 5 of the judgment of the trial Magistrate wherein he has referred to such statements can be made use of.

(8.) The relevant part of para 5 of the impugned judgment reads as follows :

"On the basis of the evidence led by the prosecution, accused persons were examined under S. 313, Cr. P.C. in which they denied their presence at the relevant time however accused Rakesh Kumar son of Amar Singh stated that the complainant, his sons Ranjit Singh and Satish and one Mahinder son of Bansi had attacked upon him when he had gone to procure water. It has been further stated that his bicycle had been stolen 25 days before, for which he had lodged FIR at police station, Narpur without disclosing any person's name and police had enquired the complainant party besides stated that he was innocent and due to revenge, the complainant party had filed a false case against him. It has further been stated that Mohinder Singh son of Bansi Lal was not Mohinder Singh examined by the prosecution but Amin Chand son of Bensi Lal resident of Panjara. Remaining accused persons also stated that they were innocent and have been falsely implicated in this case."

(9.) The aforesaid contents of the judgment read with whatever answers of the accused persons in their statements under S. 313, Cr. P.C. have been recorded, make it out a case of denial of the prosecution case by the accused persons.

(10.) To prove the charge against the accused persons, the prosecution examined three eye-witnesses, namely, PW-1 Ram Singh, PW-2 Ranjit Singh, both injured and PW-3 Mohinder Singh, PWs. Ram Singh and Ranjit Singh, being the alleged injured and, therefore, interested in the success of the case, cannot be called independent witnesses and their statements can be relied upon only if there is other cogent and reliable corroborating evidence. It is moreso, for the reason that the arguments which ultimately led to the quarrel was started by PW-2 Ranjit Singh.

(11.) To corroborate the statements of the aforesaid two witnesses, the prosecution examined PW-3 Mohinder Singh. The plea of the accused persons is that PW-3 Mohinder Singh in fact is not the person who had witnessed the occurrence and was examined during the course of investigation and the trial Court, in the impugned judgment, has doubted that this witness (PW-3) is the same person whose statement had been recorded by the police during investigation under S. 161, Cr. P.C. A perusal of the record reveals that the police has recorded statement of one Mohinder son of Bansi Lal, resident of Panjara aged 19 years under S. 161, Cr. P.C. Particulars of PW-3 Mohinder Singh as given by the Court are Mohinder Singh son of Bansi Lal R/O Panjara aged 25 years. The former statement was recorded in the year 1992 and the latter in the beginning of the year 1994. A

person who was 19 years of age in the year 1992 cannot be of 25 years of age in the beginning of the year 1994. This difference though may not be enough to hold that PW-3 Mohinder Singh is not the same person whose statement was recorded by the police during the course of investigation but PW-3 Mohinder Singh himself has stated that his statement was not recorded by the police at all. Only two conclusions are, therefore, possible against this background, viz. either the police has recorded the statement of this witness of its own or the plea put forward by the accused is correct. In other case, statement of PW-3 Mohinder Singh is rendered suspicious. It is moreso in view of his admission that at one point of time the accused persons had gone to his house and had broken their slates and one of the accused had caused injury with a knife on the hand of his mother. He further goes on to admit that the matter was not reported to the police because they did not deem it necessary. Thus, statement of PW-3 Mohinder Singh does not lend the required corroboration to the statements of PW-1 Ram Singh and PW-2 Ranjit Singh.

(12.) The other circumstance relied upon by the prosecution to connect the accused with the commission of the offence is the recovery of the Sangha Ex. P-2 and drat Ex. P-1 as weapons of offence on production by PW-2 Ranjit Singh vide memos Exs. PW-2/B and PW-2/A respectively. PW-2 Ranjit Singh had stated that he had snatched drat Ex. P-1 and Sangha Ex.P-2 from the accused at the time of the occurrence and subsequently produced before the police. These recovered articles are not uncommon. When three persons are assaulted by six persons, it seems improbable that the assailed would have taken possession of the weapons wielded by the assailants that too by a single person. This recovery, therefore, is also suspicious and cannot be treated as a cogent and reliable piece of evidence.

(13.) Reliance has further been placed by the prosecution on the medical evidence in the form of statement of PW-5 Dr. Anil Mahajan and the MLCs in respect of medical examinations of Ram Singh, Ranjit Singh and Satish Kumar respectively Ex. PW-5/A, Ex. PW-5/B and Ex. PW-5/C. As per the statement of PW-5 and the aforesaid MLCs, injuries were found on the person of the said persons. However, it is evident from the statement of the same doctor who has been examined as DW-1 also read with MLCs Ex. DW-1/A and DW-1/B that four simple injuries were found on the person of accused Jeet Singh and six simple injuries were found on the person of accused Rakesh Kumar. According to the accused persons, these injuries were caused by the complainant party. However, instead of explaining these injuries on the person of the accused persons, all the alleged eye-witnesses, namely, PW-1 Ram Singh, PW-2 Ranjit Singh and PW-3 Mohinder Singh have feigned ignorance about the injuries sustained by the aforesaid two accused persons. The defence of the accused persons is that accused Rakesh Kumar was assaulted by Ram Singh, Ranjit Singh, Satish and one Mohinder when he had gone to take water and that the cause for the assault was that accused Rakesh Kumar had reported to the police about the theft of his bicycle without disclosing anyone as the suspected thief but accused Ranjit Singh, under the impression that he has been named as the thief, had started the quarrel. The theft of the cycle and the apprehension in the mind of Ranjit Singh that he has been accused of the theft are the facts borne by the record and, thus, being satisfied that he has been named as the accused, in the natural course of human conduct, he can be expected to have initiated the assault. Such inference will became stranger for want of explanation of the injuries found on the person of the two accused persons and non production of any independent witness. This is not a case where no independent witness could have been examined and produced. It is admitted by PW-1 Ram Singh complainant that at the time of quarrel about 100 to 150 persons had collected on the spot. However, none of such persons has been produced to land credibility to the version given by PWs. Ram Singh and Ranjit Singh. The absence of examination of independent eye-witness and non explanation of the injuries found on the person of the accused persons, will lead to the inference that the case of the prosecution is based on unfair and faulty investigation and must fail.

(14.) The above view is fully supportable in view of the propositions of law as laid down by the Hon'ble Apex Court.

(15.) In case Laxmi Singh v. State of Bihar, AIR 1976 SC 2263 : (1976 Cri LJ 1736) the Hon'ble Supreme Court has held as follows

(at page 1741 of Cri LJ) :

"In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation that the injuries sustained by the accused Darshan Singh in the course of occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed, if the eye-witness could not have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case."

(16.) In case State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079) the Hon'ble Apex Court held as follows :

"The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6, mere particularly, when so

me of these witnesses have lied by stating that they did not see any injuries on the person of the accused." (17.) In case Ramesh v. State of U. P., 1991 Cri LJ 2976 the Hon'ble Supreme Court held as follows (at page 2980 of Cri LJ) : "The above circumstances clearly indicate that the prosecution has not come with clean hands and had also failed to establish the origin of the incident as alleged. The origin of the incident appears to be shrouded in mystery in view of the unexplained number of injuries of Ramesh accused-appellant. The conclusion, therefore, is that the evidence on record is not sufficient to bring home the guilt of the appellants beyond reasonable doubt." (18.) In view of the above propositions of law, the want of production of independent witnesses which were available and non explanation of the injuries on the person of accused Jeet Singh and Rakesh Kumar and the probability that the quarrel started at the instance of PW Ranjit Singh who was nursing a feeling which in all probabilities could lead him to assault, the prosecution case is bound to fail. (19.) The learned trial Magistrate has thoroughly examined all the material aspects of the case and the conclusions arrived at by him cannot be said to be illogical, un-warranted or perverse, in view of the material on record. Therefore, the impugned acquittal order does not call for any interference by this Court. (20.) As a result, the appeal merits dismissal and is accordingly dismissed.Appeal dismissed.