Kanta Bhatnagar, J.
1. Appellants Maghar Sigh and Bikar Singh @ Amarjeet Singh were tried for the offences under Sections 307, 326 and 324 read with 4 I PC. by the Sessions Judge, Shri Ganganagar. By the judgment dated February 9, 1982 accused Bikar Singh @ Amarjeet Singh was convicted for the offence under Section 326 I.P.C. and Maghar Singh for the offence under Section 326 I.P.C. and Maghar Singh for the offence under Section 326 read with 34 I.P.C. and both of them were sentenced to four years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo six months rigorous imprisonment each. By the same judgment Maghar Singh was held guilty for offence under Section 324 and Bikar Singh for the offence under Section 324 read with 34 IPC and sentenced to one year's rigorous imprisonment and a fine of Rs. 200/-, in default to undergo two months rigorous imprisonment each with an order that the substantive sentences awarded to both the appellants shall run concurrently.
2. It is in grievance that judgment that the appellants have preferred this appeal in this Court.
3. Briefly stated, the facts of the case leading to the trial of the appellants and the appeal filed by them are as under :--Gurdeosingh injured was owing Rs. 10/- from the appellant Bikar Singh. On December 18, 1980 there was some altercation between the two regarding that money. On the same day in the evening at about 5.15 P.M., when Gurdeo Singh had gone to the shop of Rama to make some purchases, the two appellants and Sarjeet Singh and Dalip Singh, sons of Maghar Singh, surrounded Gurdeosingh. Bikar Singh was having a 'burchhi', Maghar Singh a 'gandasa' and Surjeet Singh and Dalip Singh lathis at that time. On his hearing the cry Pritam Singh (PW 1) Rolasingh (PW2) Kartarsingh (PW3) & Sultan (PW7)also reached there. Bikar Singh inflicted 'burchhi' blow, damaging the right eye of Gurdeosingh. Maghar Singh caused injury with 'gandasa'. Sultan and Pritam Singh immediately took the injured Gurdeo Singh to Sri-Ganganagar hospital, where the medical Jurist Dr. Amarjeet Singh (P.W. 4) examined the injured and prepared the injury report Ex. P. IA. On the next day i.e on December 19, 1980 at about 9.00 A.M. Pritam Singh went to Police Station, Sri-Ganganagar and lodged the report Ex. P. (sic) before the Station House Officer Krishna Avtar (P.W. 8). The Station House Officer went to the site and conducted necessary investigation there and prepared the site inspection memo and the site plan. On January 2, 19 1 when Gurdeo Sing regained consciousness, his statement was recorded by the Station House Officer. The blood stained' clothes of 'he injured were taken in possession. On December 21, 1980 the appellants Bikar Singh and Meghar Singh were arrested vide memos Ex.P 7 and Ex.P 8 respectively. On December 23, 1980 Bikar Singh furnished information to the Station House Officer for getting recovered 'burchhi' from his house & got recovered the same, Maghar Singh furnished information for getting recovered 'gandnsa' from the place where his cattle were kept and got u recovered. Dr. Amarjeet Singh (PW 4) referred the case to the eye specialist for scertaining the nature of the injury to the eye and also for treatment Dr. Manohar Singh (PW6) examined Gurdeo Singh and prepared the report Ex P 2 and opined that the injury to the eye was grevious in nature. The investigating agency did not find any evidence against Sarjit Singh and Dilip Singh.
4. On the completion of investigation, charge sheet against the present appellants was filed in the Court of Munsif & Judicial Magistrate, Sri Ganganagar. The learned Magistrate by the order dated March 17,1981 committed the appellants to the court of Sessions Judge, Sri-Ganganagar to stand their trial there. The learned Sessions Judge charge sheet the appellants for the aforesaid offences and recorded their pleas. Both of them denied the indictments and claimed to be tried. To substantiate its case, prosecution examined eight witnesses in all. The appellants in their statements under Section 313 of the Code of Criminal Procedure denied all the allegations levelled against them. Maghar Singh stated that it was on account of enmity with one Amarjeet Singh and that at his instance that he was falsely implicated in the case. Bikar Singh took the plea that while he was returning from another village with his 'ricksaw' he saw a gathering and Gurdeosingh lying injured but he did not stay there and went to his house. No defence witness was examined.
5. The learned Sessions Judge placing reliance on the prosecution evidence held the appellants guilty and sentenced them by the impugned judgment as stated above.
6. The learned Counsel for the appellants strenuously contended that in the absence of the statement of Gurdeosingh, the evidence of other witnesses should not have been placed reliance to establish the guilt against the appellants. That, the prosecution case suffers from serious infirmities. The witnesses named in the first Information Report have not been examined. There is delay in recording the statements of the alleged eye witnesses. Most of the eye witnesses are interested in the injured. There is delay in lodging the First Information Report without there being any explanation for the same. To substantiate his contention, the learned Counsel placed reliance on certain authorities which would be discussed at the appropriate stage.
7. The learned Public Prosecutor submitted that the prosecution case has been duly established by the four eye witnesses viz. Pritam Singh (PW 1) Rola Singh (PW 2), Kartar Singh (PW 5) and Sultan (PW 1) and there is no reason to disbelieve them. That there is explanation for the delay in examining all the witnesses and delay in filing the First Information Report.
8. At the very outset it may be observed that the injured could not be examined at the trial as he had expired prior to it. Pritam Singh (P.W 1) has stated about taking his son to various hospitals for the treatment of the eye injury and his dying prior to the trial. The learned trial Judge has rightly held that there is no evidence to connect the death of Gurdeosingh to any of the injuries sustained by him. In the absence of the statement of the injured in the case, the prosecution case will have to be seen from the statements of the four eye witnesses.
9. Pritam Singh (P.W. 1) is the father of Gerdeosingh and is said to have reached the site immediately on hearing the cry. He has stated about the injuries caused by the two appellants and the weapons used by them. The only criticism levelled against this witness is that he had not lodged the report immediately at the police station. The incident had taken place at 5.15 P.M. & immediately hereafter Sultan & Pritamsingh had taken the injured to Shri Ganganagar hospital. The argument of the learned Public Prosecutor has full force that it was natural for the father to get his son medically examined first instead of lodging the report at the police station. This is correct that the Doctor should have informed the police or Sultan could have gone to lodge the report but simply for that reason it cannot be inferred that Pritam Singh was not an eye witness and was telling a lie. Much emphasis has been laid by the learned Counsel for the appellants for the delay in lodging the First Information Report the information has been lodged on the next morning. If the treating Doctor did not care to inform the police in time and father of the injured went to the Police Station only on the next day, the prosecution case cannot be thrown away on that count alone.
10. Rolasingh (P.W. 2), Kartarsingh (P.W. 3) and Sultan (P.W. 7) are the three other eye witnesses to the occurrence examined by the prosecution. The learned Counsel for the appellants strenuously contended that the statements of the witnesses are contradictory on the point as to who out of them had actually reached the site first of all. It is pertinent to note that all of them have claimed to have eached the site immediately on hearing the cry. Minor discrepancies on the point as who out of them was ahead of whom is not sufficient to discard their testimony in toto.
11. According to Mr. Garg, Pritamsingh being the father of injured Gurdeosingh and Rolasing being related to them were interested witnesses. That Sultan was inimical to the appellants as his father was having litigation with Maghar Singh appellant regarding some property. The learned Counsel has referred to the case of Ram Ashrit and Ors. v. The State of Bihar : 1981CriLJ484 . In that case their Lordships have ot emphasised upon discarding the testimony of interested partisan and inimical witnesses altogether, rather have insisted upon the testimony of such witnesses to pass the test of close and severe scrutiny before such testimony can be safely acted upon.
12. Name of Sultan appears in the First Information Report as the person immediately reaching the site. He had accompanied Pritam singh when he had taken Gurdeosingh to the hospital Even if the contention of the learned Counsel for the appellants that Sultan had reached the site after the injurieswere inflicted is taken into consideration, still his evidence about Maghar singh having 'gandasa' and Bikarsingh having 'burchhi' at the time corroborates the version given by Pritamsingh that Bikarsingh caused injuries with 'burchhi' and Magharsingh with 'gandasa' Merely because some litigation was going on between the father of the witness Sultan and Magharsingh, it can ot be said that he was a planted witness, because his statement otherwise inspires-confidence.
13. An other criticism levelled against Sultan and the other two eye witnesses Rolasingh (P.W. 2) and Kartarsingh (P.W 3) is that their statements were recorded by police as late as on December 30, 1980 without there being any explanation for the same The importance of examining the material witnesses at the earliest by the police need not be over emphasised. There are two reasons for that. Firstly, that the memory may be fresh and secondly, there may not be any scope for any improvement in the story. At the same time the mere fact of examining the material witnesses with delay, if there is plausible explanation for the same, would not be sufficient to discard the testimony of those witnesses In the case on hand, the Station House Officer concerned has given the explanation that as Rolasingh (P.W. (sic)1), Kartarsingh (P.W. 3) and Sultan (P.W.7) were not available their statements could not be recorded prior to December 30, 1980.
14. In the case of Bhagwan and Anr. v. State of M.P. : 1980CriLJ1269 relied on by Mr. Garg, the only material witness, the clearer of the truck was examined after 1 1/2 months after the date of the incident. The witness was not believed as he had stated that he was kept confined by the police for about two days before recording his statement and that he had given his statement under duress.
15. Yet another argument raised by the learned Counsel for the appellants is that as Kartarsingh and Rolasingh were not named in the First Information Report, their evidence should not have been considered worthy of reliance by the learned trial Judge. The learned Judge has taken note of this argument and has observed that the name of Pritamsingh and Sultan etc. have been mentioned in the First Information Report should be taken to mean that persons other than those two were also there and as such Rola Singh and Kartar Singh cannot be said to be planted as eye witnesses by the prosecution.
16. Yet another argument advance is that Mukhtiarsingh, whose name was there in the first Information Report and Gurmeetsingh, a neighbourer, though examined by the police were not examined at the trial and therefore an adverse inference should be drawn against the prosecution for withholding material witness. It is correct that it would have been better if the prosecution had cared to examine those witnesses. At the same time as the learned Public Prosecutor has urged it was not obligatory on the prosecution to multiply the numbers of witnesses to narrate the same facts.
17. In view of the above discussion, from the statement of Pritam Singh, against whom there is no criticism worth the name, his being except the father of the victim corroborated by the testimony of the other eye witnesses, I do not find any error in the findings of the learned trial Judge that Bikar Singh and Maghar Singh were the authors of the injuries sustained by Gurdeo Singh.
18. The next point argued by the leaned counsel for the appellants is, that, there is no evidence about the two appellants having caused any particular injury to Gurdeosingh. So far as the grevious injury by 'burchhi' on the eye of Gurdeosingh is concerned, there in definite opinion of Doctor Manohar Singh (PW 61. The Doctor is also specific on the point that, that injury could be caused by a weapon like, 'burchhi' which was shown to him in the Court. It has been established that it was Bikar Singh who was having 'burchhi' with him and had caused injury at the eye with it. Out of the five injuries, the only one at the eye, was grevious and the author of it was Bikar Singh. The other injuries were simple in nature. There being specific opinion about the grievous injury by sharp edged weapon having been caused by Bikar Singh, his conviction under Section 326 requires no more discussion.
19. The pertinent question for determination is, whether there is evidence to suggest that Maghar Singh had shared the common intention with his son Bikar Singh for infliction of grievous injury to Gurdeosingh. It is note worthy that enmity between the injured and Bikar Singh was only regarding the petty amount of Rs. 10/-. Pritam Singh has stated about there being not altercations between the two on December 18,1980 and on the same evening this incident having taken place. It is relevant to observe that there is no evidence about the origin of the quarrel. All the witnesses including Pritam Singh had reached the site on hearing the cry, Sarjitsingh and Dilip Singh alleged to be present there with lathis have been left by the Investigating Officer himself because of lack of evidence for their participating in the crime. In this view of the matter, in the absence of any specific evidence Maghar Singh cannot be held guilty for the grevious injury with sharp edged weapon caused by Bikar Singh to Gurdeosingh with the help of Section 34 IPC in these circumstances, the appellants can be held guilty only for their individual acts and not vicariously liable for the act of the co-accused the conclusion would be that the conviction of Bikar Singh for the offence under Section 326 and Maghar Singh under Section 324 IPC alone is sustainable.
20. The learned Counsel for the appellants submitted that Maghar Singh is also old man of 70 years and a lenient view may be taken and he may not be sent behind the bars again. Advancing arguments, regarding quantum of sentence of Bikarsingh, the learned Counsel submitted that he was below 21 years of age at the relevant time and Gurdeosingh now having met his natural death, a lenient view may be taken in his case also.
21. The age of Maghar Singh in the year 1980, as mentioned in his arrest memo was 70 years. In his statement under Section 313 of the Code of Criminal Procedure recorded on December 30,1980 he has stated his age to be 75 years. The estimate of the Court is 68 years. Be it as it may, he is an old man and I have held him guilty only for the offence under Section 324 IPC. He had remained in custody for a period of about three months. In my opinion the ends of justice would meet if the substantive sentence of one year rigorous imprisonment awarded to him for the offence under Section 324 IPC is reduced to the period he had remained in custody along with the fine imposed by the trial Court.
22. The age of Bikar Singh in the year 1980 as mentioned in his arrest memo was 20 years. In his statement under Section 313 of the Code of Criminal Procedure recorded on December 30, 1980 he has stated his age to be 15 years. The Court has estimated his age to be 21 years. Though his age on the date of the occurrence was below 21 years, in view of the serious-injury caused to Gurdeosingh, it is not considered to be a fit case in which benefit under the Probation, of Offenders Act, as prayed, may be extended to him. He has remained in custody for about one year so far. In view of he weapon used by this appellant, the nature of the injury sustained by the victim at his hands, his young age in itself would not be a circumstance to hold that substantive sentence of a period of about one year would meet the ends of justice.
23. Another argument advanced by the learned Counsel is that subsequent to the occurrence, Gurdeosingh met his natural death and he had not to suffer long on account of the injury on the eye sustained by him and therefore, a lenient view may be taken. This is correct that there is no evidence to connect the death of Gurdeosingh with this incident but so long as he survived he had suffered the pangs and agony on account of the serious injury sustained by him and for that reason also sentence for a period of one year Bikar Singh has suffered so far cannot be considered to be adequate. Despite that, in view of the trival nature of the quarrell, the exact origin of the quarrel at the time of the incident not known and the young age of the appellant Bikar Singh does require a lenient view so far as substantive sentence for the offence under Section 326 IPC is concerned.
24. Consequently, the appeal is partly allowed. The conviction of Maghar Singh for the offence under Section 326 IPC read with 31 IPC and of Bikar Singh @ Amarjeet Singh for the offence under Section 324 read with 34 IPC and the sentences awarded to them for those offences are set aside. The conviction of Bikar Singh (a) Amarjeet Singh for the offence under Section 326 IPC is maintained. However, the substantive sentence of four years rigorous imprisonment awarded to him for that offence is reduced to two' years rigorous imprisonment. The sentence of fine of Rs. 500/- in default to undergo six months rigorous imprisonment for that offence is maintained. The conviction of appellant Maghar Singh for the offence under Section 3/4 IPC is maintained. The sentence of one year's rigorous imprisonment awarded to him for that offence is reduced to the period he had remained in custody so far. The amout of fine of Rs. 200/-, in default to undergo two months rigorous impirsonment for that offence is maintained. Appellant Bikar Singh is in jail. He shell suffer the remaining period of sentence awarded to him, Magharsingh appellant is on bail. He is allowed two months time to deposit the amount of fine in the trial Court. In case he fails to deposit the amount of fine within that period, the Chief Judicial Magistrate, Sri-Ganganagar shall effect his arrest by warrant of arrest and send him to custody to suffer the sentence awarded to him in default of payment of fine.