JUDGMENT Umeshwar Pandey, J.
1. This appeal arises out of the Judgment and order of conviction and sentence dated 18.10.2000 passed by the Special Judge (S.C./S.T. Act), Banda.
2. The brief facts are that on 13.8.1999 in the after-noon at about 4 P.M. while Dwarika (P.W.2) was at his residence, the appellant-accused Shamsuddin came to him and started abusing him using filthy language which attracted the attention of complainant Ram Babu (P.W.1) the son of P.W. 2, who tried to stop the accused from abusing his father. Thereupon the appellant assaulted him with Lathi inflicting two contusions upon his body. On the commotion raised on the spot several witnesses arrived there and the accused thereafter left the spot. It is also stated in the F.I.R, that the appellant was accompanied by unknown person who was holding a country-made pistol. The matter was immediately reported at the police station at 5 P.M. by P.W.1 and a case under Sections 323, 504 and 506 I.P.C. and 3(1)(10) of S.C./S.T. Act was registered against the appellant. The injuries of Ram Babu (P.W.01) were examined at Primary Health Centre, Naraini, the same evening at 8 P.M. Dr. N.D. Sharma (P.W.5) has found two contusions on the body of Ram Babu, one on the left leg and the other on the left side of back. The matte was investigated by K.S. Sinha, S.I. (P.W.4), who, after recording evidence etc. in the case, submitted charge-sheet.
3. The accused on being charged for the aforesaid offences under Sections 323, 504 and 506 I.P.C. and 3(1)(10) of S.C/S.T. Act, he pleaded not guilty and subsequently under Section 313 Cr.P.C. he stated that he had been falsely implicated on account of enmity.
4. The trial court in this case recorded the evidence of five witnesses during the trial, who included the complainant Ram Babu (P.W.1), his father Dwarika (P.W.2) and another eye witness Babu (P.W.3), the Investigating Officer K.S. Sinha (P.W.4) and Dr. N.D. Sharma, who had medically examined Ram Babu on 13.8.2000 as P.W.5. The prosecution also proved the documents Exts. Ka-1 to Ka-6 which "include the F.I.R., Chick F.I.R., injury report of Ram Babu, siteplan and charge-sheet etc.
5. The defence in this case has not submitted any evidence, oral or documentary.
6. The trial court after having considered all the materials and evidence available on record found that the offences punishable under, Section 3(1)(10) of S.C./S/T. Act and under Section 506 I.P.C. were not proved against the appellant-accused and he was acquitted of the same. The court below, however, found that the offence punishable under Section 323 and 504 I.P.C. had been proved and accordingly conviction was recorded for those offences and sentenced the appellant with rigorous imprisonment of one year for the offence under Section 323 I.P.C. and for two years rigorous imprisonment with regard to the offence punishable under Section 504 I.P.C.
7. Since this appeal was preferred from jail as the appellant was not represented by anybody, Sri Sikandar Bharat Kochar had been appointed as Amicus Curiae to represent the appellant and place arguments in this appeal on his behalf. I have heard Sri Kochar and the learned A.G.A. at length and have also perused the paper-book and the original record of the trial court.
8. It is a case of Marpeet in which the complainant Ram Babu is said to have received certain minor injuries. The place of occurrence is Naraini town. The police station is at a distance of only one Km. from the place of occurrence, but the F.I.R. had been lodged after about three hours of the incident at 7 P.M. Obviously there is delay in giving information to the police. This delay has not been explained either in the F.I.R. or in the statement of the complainant. In fact this is such a case where the informant had received very minor injuries and the whole narration of the incident was also very small which could have been drafted and submitted at the police station at the maximum, within one hour of the incident. But, for the reasons best known to the complainant, he delayed it which he did not explain even in his evidence before the trial court. Therefore, the learned Amicus Curiae has emphasised that this case from the very; inception appears to be a fabricated one which would further be crystallised by looking into the evidence led from the side of prosecution.
9. As regards the presence of injuries on the person of the complainant Ram Babu there are only two small contusions noticed on the back of leg and on the back of chest The learned Amicus Curiae submitted that these injuries could be manufactured also even though the Dr. D.N. Sharma (P.W.5) in the cross-examination has expressed his opinion that it could not be caused by fall of the person on the ground. Obviously this statement of Dr. Sharma (P.W.5) on the face of it appears to be ridiculous. These simple injuries of a very minor nature both located on the back side of the body can very well be received even if the person injured falls on the ground. Otherwise also these minor injuries can be self-inflicted. The opinion of Dr. Sharma (P.W.5) in this regard appears to be hardly of any relevance. Therefore, in view of the presence of such injuries on the body of the complainant, it cannot be said with certainty that it could be a conclusive corroborative evidence to prove and substantiate the oral evidence of P.W.1.
10. As regards statement of P.W.1, it has several infirmities. The first infirmity is that he took a case in the F.I.R. that the accused-appellant Shamsuddin was accompanied by another person not known to him from before and he was holding a country-made pistol in his hand. This fact of the F.I.R. has not been substantiated in the statement of the complainant Ram Babu before the court. P.W.1 is silent on this fact. Even during the cross-examination he has not stated a word about this fact. The defence was not obliged to put any question on this fact to him during the cross-examination as he was silent on this point in his examination-in-chief itself. The absence of any proof with regard to the said fact in the evidence, the part of prosecution story becomes wholly unbelievable. P.W.3, who claims to be one of the eye-witnesses, on this point, has stated in the cross-examination that the accused Shamsuddin was all alone. That means, he was not accompanied by a person who is said to have been holding a country-made pistol and accompanying the accused on the scene of occurrence.
11. The other aspect of the evidence given, by P.W.1 is that he in the evidence before the court states that the actual act of assault upon him by the accused was done on the road. This place is also indicated by the Investigating Officer at "A" in the site-plan which is located on the road itself. But the F.I.R. lodged by P.W.1 does not state about the incident having taken place on the road. It has been stated there that the appellant-accused Shamsuddin had come to his residence where he had demanded sugar and money etc. from his father and when his father showed him inability, the accused started abusing him and when he tried to stop the accused, it resulted into an incident of Marpeet. If we go by the words in the F.I.R.., the incident had taken place at the residence of the complainant and not on the road. The site-plan shows that the road is at a reasonable distance from the residence of the complainant and if assault had been made at the residence, the place of occurrence could not have been confused with the road as has been subsequently stated in the evidence of P.W.1. The complainant's father Dwarika (P.W.2) has also stated before the trial court that the accused had come to him and had put certain demands, but when he expressed his inability he started abusing him and assaulted his son. He also does not say in his examination-in-chief that the actual assault took place on the road, rather from his evidence it can be gathered that according to him also the incident of assault must have taken place at his residence only.
12. As regards the statement of Babu (P.W.3), who is said to be an independent witness, his evidence too does not inspire confidence. The learned Amicus Curiae has pointed out that he had introduced a new story about the manner of assault. He has stated that the accused had assaulted the complainant with shoes also. He has deposed before the trial court that 3-4 blows of shoes were given by the accused on the spot. This part of statement does not find any support in the statements of P.W. 1 and P.W.4 nor it gets any corroboration from the F.I.R. P.W.3 also stated that besides him 10 to 15 people had gathered at the place' of occurrence when the incident was taking place. This witness is not named in the F.I.R. The reference of the name of P.W.3 as a witness of the case is though there in the statement of P.W.1 and P.W.2, but they also do not support this part of the statement of P.W.3 that besides him there were 10 to 15 more persons present on the spot as witnesses. Therefore, the cumulative effect of these discrepancies as appearing in the statements of P.W.1 and P.W.I.3. from that of the F.I.R. is that the evidence given by them is not safely reliable for the purposes of recording a conviction in this case.
13. As regards the charge for the offence of causing intentional insult to Dwarika (P.W.2) with intent to provoke him for breach of peace punishable under Section 504 I.P.C. the settled view is that the person who claims to have been insulted must narrate the actual word used for such insult which might provoke him to break the public peace or to commit any other offence. Here the prosecution case is that Dwarika (P.W.2), the father of complainant was abused by use of filthy language. That language has not been reproduced either in the F.I.R. or in the statement of Dwarika himself recorded before the trial court. The general statement of the fact has been given that the accused was abusing Dwarika at the time of the incident using filthy language, P.W,3 has also not reproduced those insulting words alleged to have been used by the accused against Dwarika. It is P.W.1, the complainant only who has given the details of the language used in his statement, but his evidence alone, not finding corroboration in the F.I.R. nor substantiated by the person who is said to have been insulted, will not be of that probative value to the prosecution nor it is worth believing for recording conviction for the said offence punishable under Section 504 I.P.C.
14. Thus, in view of the aforesaid, the conviction recorded by the court below for the aforesaid offence punishable under Sections 323 and 504 I.P.C. against the appellant appears to be unsustainable in the eye of law. The prosecution has not succeeded to bring home the guilt for the aforesaid offences to the hilt. The appellant is entitled to the benefit of doubt in the present case and the appeal shoud be allowed.
15. In the result, the appeal is allowed.
16. The impugned judgment and order dated 18.10.2000 passed by Special Judge S.C./S.T. Act, Banda is hereby set aside. The appellant-accused is acquitted for the aforesaid offences punishable under Sections 323 and 504 I.P.C.
17. From the perusal of the record it is found that this conviction was recorded way back on 18.10.2000 and since then the appellant-accused had been languishing inside the lockup., The period of maximum sentence awarded being only two years imprisonment has already elapsed. In all reasonableness the appellant may have been released much before. In case he is still inside the jail, he shall be released forthwith, if not wanted in any other case.
18. The original record of the 'court below along with a certified copy of this judgment be transmitted to it for necessary compliance.