JUDGMENT A.N.Dikshita 1. This is an appeal by Chandra Bhan and Gavendra against the judgment and order dated 4-4-1979 passed by Sri S. N. Prasad, 7th Additional Sessions Judge, Bulandshahr. Both the appellants have been convicted under section 332 and 333 IPC and each has been sentenced to 9 months' R. I. on the first count and to 1 1/2 years' R. I. and a fine of Rs. 200/- on the second count. In default of payment of fine three months' further rigorous imprisonment has been ordered. 2. The prosecution story, in brief, was as follows : on 9-10-1974 Jagdish Prasad Sharma, PW 2, lineman in the Rural Electrification Sub-Division, Debai, Bulandshahr, was directed by Sri Ramesh Chandra Agarwal, Assistant Engineer to attend to some repair work at the supply line of Kanchan Singh and Sohanpal's tubewell in village Silhari. While Jagdish Prasad Sharma was proceeding towards village Silhari on a cycle and had reached near the Bumba (canal culvert) at about 10.00 a. m. he saw the two appellants standing there armed with lathis. Appellant Chandra Bhan accosted Jagdish Prasad Sharma and stated that : " Jagdish ruk ja aaj tujhse apne bhai ki maut ka badla lunga jo bijli kay karant se mara tha. " Uttering these words both the appellants started assaulting Jagdish Prasad Sharma, PW 2. The victim raised an alarm upon which Ziley Singh, PW 1, Fateh Singh, PW 5, both of the electricity department and working nearby and Sohanpal, Tika Ram, Kanchan Singh and Mohd. Bilal rushed to the scene of occurrence and rescued him. Ziley Singh and Fateh Singh, PWs, took the injured to the hospital at Debai for medical aid. Dr. Suresh Chandra Singh, PW 3, examined Jagdish Prasad Sharma the same day at 1.35 p. m. He found 2 lacerated wounds, 4 contusions, one multiple contusion and two abrasions on the person of Jagdish Prasad Sharma. All the injuries except injury no. 4 was found to be simple caused by some blunt object. Regarding injury no. 4 X-ray was advised and it was ultimately found to be grievous in nature. A written first information report of the incident was lodged by Jagdish Prasad Sharma through Fateh Singh at Police Out-post Ramghat the same day (9-10-74) at 5.30 p. m., the police station being 3 1/2 miles from the place of occurrence. 3. Regarding injury no. 4 X-ray was advised and it was ultimately found to be grievous in nature. A written first information report of the incident was lodged by Jagdish Prasad Sharma through Fateh Singh at Police Out-post Ramghat the same day (9-10-74) at 5.30 p. m., the police station being 3 1/2 miles from the place of occurrence. 3. The usual investigation followed and ultimately a charge sheet was submitted against the appellants. 4. Apart from the formal witnesses the prosecution examined Ziley Singh PW 1 Jagdish Prasad Sharma PW 2, Mohd. Biial PW 4, and Fateh Singh PW 5, to give an ocular version of the incident. The appellants pleaded not guilty and asserted that they had been falsely implicated in the case due to enmity. 5. The trial court on a consideration of the evidence on record held that the prosecution had succeeded in establishing its case and accordingly convicted and sentenced the appellants as already stated above. 6. I have heard the learned counsel for the parties and have also gone through the evidence on record. There are certain features in the case which cast a reasonable doubt regarding the truthfulness of the prosecution case. The motive suggested by the prosecution was that about four years prior to the present incident one Narain Singh, brother of Chandra Bhan appellant, had died as a result of electrocution while he was cutting the electric wire and the appellants with a view to take revenge of his death had assaulted Jagdish Prasad Sharma. The prosecution has not alleged that Jagdish Prasad Sharma was in any way responsible for Narain Singh's death. If motive was to be attributed in this manner, the appellants would be said to have motive against the entire electricity department. This could not be so. Further it has come in evidence that during these four years Jagdish Prasad Sharma visited village Silhari on various occasions in connection with his official duty but nothing untoward happened. The motive suggested for the commission of this offence, therefore, cannot be held to be sufficient. 7. There is inordinate delay in the lodging of the first information report in this case for which the prosecution has not given any explanation. A delayed first information report with no explanation weakens the prosecution case and creates a suspicion in the mind of the Court. 8. 7. There is inordinate delay in the lodging of the first information report in this case for which the prosecution has not given any explanation. A delayed first information report with no explanation weakens the prosecution case and creates a suspicion in the mind of the Court. 8. There is yet another circumstance which needs a mention. The prosecution case was that Ziley Singh PW 1, Jagdish Prasad Sharma PW 2, and Fateh Singh PW 5, were working on the supply line in village Silhari. It is a matter of common knowledge that on complaints being lodged by the consumers the Incharge of the Sub-Station deputes linemen to rectify the defects in the supply line and to restore regular supply of energy. In this case though the prosecution alleged that Jagdish Prasad Sharma had gone to village Silhari on the orders of Sri Ramesh Chandra Agarwal, Assistant Engineer, but neither any written order was produced nor Sri Agarwal was examined to prove that Jagdish Prasad Sharma had been deputed to village Silhari in connection with his official duty. This creates a doubt regarding the presence of Jagdish Prasad Sharma at the place of occurrence. The presence of Ziley Singh, PW 1, and Fateh Singh, PW 5, in the absence of any order for them to go and work near the place of occurrence or somebody proving the fact that they were present there on official duty, also becomes doubtful and not fully proved. According to the prosecution on hearing the cries of Jagdish Prasad Sharma, Ziley Singh PW 1, Fateh Singh PW 5, and Sohanpal, Tika Ram, Kanchan Singh and Mohd. Bilal had rushed to the scene of occurrence who witnessed the assault on Jagdish Prasad Sharma. Out of the above persons the prosecution examined apart from the injured, Ziley Singh PW 1, Fateh Singh PW 5, both of the electricity department and only one independent witness Mohd. Bilal PW 4. Ziley Singh and Fateh Singh were certainly interested witnesses. For reasons best known to the prosecution the other independent witnesses were withheld by the prosecution. 9. The above facts and circumstances create a dent in the prosecution case and keeping this background in mind now I proceed to examine the oral evidence on record. 10. Bilal PW 4. Ziley Singh and Fateh Singh were certainly interested witnesses. For reasons best known to the prosecution the other independent witnesses were withheld by the prosecution. 9. The above facts and circumstances create a dent in the prosecution case and keeping this background in mind now I proceed to examine the oral evidence on record. 10. Ziley Singh, PW 1, admitted that when he reached the scene of occurrence he saw Jagdish Prasad Sharma lying on the ground and the appellants running away. He further admitted that he did not see the appellants assaulting Jagdish Prasad. He rushed to the scene of occurrence on hearing the cries of the victim. He was accompanied by Fateh Singh, PW 5, who was also working in the nearby with him. He admitted that he saw the appellants running away from a distance of about 15 metres. On his having stated that he did not see the real assault he was declared hostile and was cross-examined by the prosecution. In cross-examination he stated that the investigating officer did not record his statement under section 161 CrPC. When his statement under section 161 CrPC was read over to him he denied that he ever gave such a statement. Neither his examination-in-chief nor his statement in cross-examination can be said to be of any help to the prosecution. So far as Fateh Singh, PW 5, is concerned I find that he too was placed in the same situation as Ziley Singh, PW 1. His presence near the place of occurrence, as already stated above, has not been fully proved. This witness also rushed to rescue Jagdish Prasad Sharma along with Ziley Singh. If Ziley Singh could not see the real assault by the appellants it is difficult to believe that he saw them assaulting Jagdish Prasad. He being a colleague of Jagdish Prasad Sharma his testimony cannot be said to be free from interestedness. From his statement also the case of the prosecution is not clinchingly proved. 11. Mohd. Bilal, PW 4, the only independent witness examined by the prosecution admitted that he did not see the appellants assaulting Jagdish Prasad Sharma. He was declared hostile and was cross-examined by the prosecution but in the cross examination nothing substantial could be extracted which could improve the prosecution case. No reliance, therefore, can be placed by the prosecution upon his testimony. 12. He was declared hostile and was cross-examined by the prosecution but in the cross examination nothing substantial could be extracted which could improve the prosecution case. No reliance, therefore, can be placed by the prosecution upon his testimony. 12. It is true that Jagdish Prasad Sharma, PW 2, tried to support the prosecution case but his testimony will have to be scrutinised with great care in view of the fact that his presence at the spot has not been fully proved. He admitted that he was issued some material for carrying out the repairs at the supply line, but it is surprising that none has come forward to prove the supply of material to him by the department. No material is proved to have been found on the spot. This witness admitted that he did not know the names and addresses of the appellants yet we find that a named report was lodged with the police. This smacks of some foul play. This witness could not state as to who caused the grievous injury to him. In view of the fact that this witness did not know the names and addresses of the appellants it can reasonably be inferred that he named the appellants at the suggestion of somebody who may be inimical to the appellants. In any case it would not be safe to convict the appellants on the solitary testimony of this witness particularly when various other facts and circumstances have created a dent in the prosecution version. It might also be observed here that in this case the prosecution failed to establish that Jagdish Prasad Sharma was a public servant and at the time of the incident he was discharging his duty as a public servant and the appellants with a view to deter him from discharging such duty caused hurt to him which was punishable under section 332 IPC or caused grievous hurt to him which was punishable under section 333 IPC. The prosecution having failed to establish these facts, the conviction of the appellants could not be recorded under section 332 and 333 IPC. 13. In view of the above discussions the appellants are entitled to be acquitted. 14. In the result the appeal succeeds and is hereby allowed and the conviction and sentences of the appellants are set aside. They are no bail and they need not surrender. The bail bonds are discharged. 13. In view of the above discussions the appellants are entitled to be acquitted. 14. In the result the appeal succeeds and is hereby allowed and the conviction and sentences of the appellants are set aside. They are no bail and they need not surrender. The bail bonds are discharged. Appeal allowed.