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Judgment
Deepak Gupta, J
This appeal by the State is directed against the judgment dated 4.11.2004 delivered by the learned Additional Sessions Judge, Fast Track Court, Shimla in Criminal Appeal No. 12.S/10 of 2003/01, whereby he allowed the appeal of the accused and set aside the judgment of the learned JMIC, Chopal, District Shimla in case No. 118/1 of 95/96 convicting the accused of having committed offences punishable u/s 326 IPC read with Section 34 IPC and sentencing them to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/- each. In default of payment of fine each of the accused was further directed to undergo simple imprisonment for three months. The prosecution story in brief is that complainant Panch Ram was working with Hira Singh, a timber contractor. On 8.1.1995 after doing his work he had missed to catch his bus and therefore, was going home on foot. When he reached Sainj Khud and was sitting in the Dabha of one Shanti Devi where accused Liaq Ram along with his relative met the complainant. Accused Liaq Ram asked the complainant to accompany him to his Dogri. The complainant went with accused Liaq Ram and his family members to the Dogri where they all consumed liquor and ate their meals. Thereafter, Liaq Ram, the relatives and the complainant slept in the Dogri whereas co-accused Promila, wife of Liaq Ram and her children were sent by Liaq Ram to sleep in the house of some other person in the village. The complainant went to sleep. At about mid night he got up and found that Liaq Ram had attacked him with a darat and caused an injury on his right forearm. On getting up, the complainant noticed that co-accused Promila was also armed with an axe and was about to attack him. He tried to grab the axe from Promila accused and during the ensuing struggle two other young persons, whom the complaint could not recognize, entered the room. They were also armed with sharp edged sickle like weapons locally known as Dangra. All the four persons beat the complainant and thereafter threw him out in the fields. The complainant was unconscious and kept lying in the fields till the morning. After regaining consciousness, the complainant first went to Sainj to the Dabha of Shanti and thereafter took a lift in a truck and went to Rohnat where he met Hari Singh and Mohar Singh. These two persons took him to a private doctor where he was given treatment. Then he met his brother at Rohnat and they took a bus via UP and reached Shillai. Next morning a report was lodged in the Police Post Shillai with regard to the incident. The complainant was taken to the hospital at Shillai where he was given first aid and thereafter taken to the Zonal Hospital at Nahan and given treatment there. On the basis of this complaint, an FIR was registered and after investigating the matter, the accused were charged with having committed the offences aforesaid. They pleaded innocence and claimed trial. After trial, the learned trial Court convicted them as aforesaid. Aggrieved by the said order of conviction, the accused filed an appeal before the learned Sessions Judge, Shimla, who assigned the same to the learned Fast Track Court, Shimla, which allowed the appeal. Hence, this appeal by the State.
It is not necessary in this second appeal to discuss the entire evidence. The whole case revolves around the version of PW-1. The sole issue is whether his statement inspires confidence and can be relied upon. PW-1 the complainant in his own statement has stated that he had inimical relations with accused Liaq Ram. According to him, Liaq Ram had also lodged a complaint of theft against him earlier. He also stated that Liaq Ram and he had a fight at a tournament at Rohnat and they had old subsisting enmity. If that be so, there is no explanation why the complainant would have accompanied Liaq Ram to his house late at night, when he was all alone by himself.
The first important witness who could have supported the version of the complainant was Shanti Devi from whose Dabha he allegedly accompanied Liaq Ram and his relatives to the house of Liaq Ram. She has not been examined. The relatives have not been identified and therefore, could not be examined. The two other young men who allegedly attacked the complainant have also not been identified. Therefore, this leaves us only with the version of the complainant and nobody else.
According to the complainant next morning after he regained consciousness he again came to the Dabha of Shanti Devi. Surprisingly, he states that he did not inform Shanti Devi about what had happened. This conduct is not normal human behaviour. If the complainant had been beaten up by the accused, as alleged by him, then he on regaining consciousness would have told every person he met, about the incident.
PW-5 Khatri is a driver of the truck. According to him on 9.1.1995 when he was crossing Sainj at about 6.00/7.00 am in the morning about 10-12 persons gathered together and told him that one person was to be taken to Rohnat. That person had suffered a lot of bloody injuries. The said person stated his name was Panch Ram and he took this person to Rohnat.
PW-12 and PW-20 allegedly met the complainant at Rohnat and took him to the doctor. PW-12 Hari Ram turned hostile. He has not supported the prosecution story at all. Though he was declared hostile but his version remained the same. As far as PW-20 Mohar Singh is concerned, his version is that on 9.1.1995 he came to know that Panch Ram had been brought in a truck as he was seriously injured. After Panch Ram was made to get out from the truck he asked Panch Ram what had happened. On this, Panch Ram informed this witness that he had been beaten by Liaq Ram and his wife. His further version is that thereafter they asked one Hari Ram Shastri and Lal Singh to go to the house of the accused to find out what had happened. They went to the house of the accused and on return informed this witness that the accused had stated that they had beaten the complainant because he had attempted to steal the goat from their house.
PW-9 Kalyan Singh is the medical practitioner who allegedly treated the complainant. According to him he is running a private clinic at Rohnat. He does not remember the day, month or time but stated that he had treated one person whose name he later on came to know was Panch Ram, who had received injuries on his right arm. This doctor has not been able to produce any record in relation to the treatment or the injuries of the complainant.
According to the complainant from Rohnat he went to Shillai. The complaint was lodged with the police only on 10.1.1995 i.e. more than 36 hours after the occurrence. There is no explanation for the delay. Delay by itself may not be a ground to acquit the accused but the prosecution must show what are the grounds justifying the delay. The complainant went to the Dhaba of Shanti Devi but made no compliant. As per the evidence of PW-5, 10-12 people gathered on the road and asked him to take the complainant to Rohnat. None of these persons has been examined. When the complainant, who appeared as PW-1, was asked certain questions about the people he contacted, he gave very evasive and vague answers and finally stated that he remained unconscious for two days and therefore, could not remember anything. This is contrary to the evidence of all other witnesses. It is obvious that the complainant was trying to hide something and therefore, gave evasive answers.
Assuming for the sake of arguments that some incident had took place at the house of the accused even then it was the duty of the complainant and the prosecution to show what was the actual genesis of the occurrence. Enmity could not have been the genesis because, as discussed by us above, if the relations were so bad then the complainant would have never gone to the house of the accused. Furthermore, according to the complainant, accused Liaq Ram along with his relative slept in the Dogri whereas accused Promila Devi and her children went to some neighbour''s house. Neither any neighbour has been examined nor any material has been placed on record as to when there was meeting of mind between the husband and the wife to carry out the crime in question. For these reasons, the version of the complainant does not inspire confidence and it would be highly imprudent to convict the accused only on the basis of the statement of the complainant. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged.