JUDGMENT D. P. Sood, J — Order of acquittal dated 15-10-1987 passed by the learned Judicial Magistrate 1st Class, (II), Shimla, has been challenged by the State of Himachal Pradesh through this appeal. 2. Shortly stated the prosecution case is that Dev Raj PW-1, a public servant, while discharging his official duties, was assaulted by the accused (respondent) on July 21, 1986 at about 6 a m at village Dargi in Tehsil Suni, District Shimla At the material time PW-1 was employed as a driver in a bus bearing registration No. HIH 444 belonging to the Himachal Road Transport Corporation He had been deputed to ply the bus to and fro from Shimla to Dargi, Uttam Chand PW-2 was the conductor of the said bus. It is the case of the prosecution that bus had reached village Dargi in the night time on the said date. On the following morning i. e., on July 21, 1986, he was informed by his conductor PW-1 that the tyre of the bus had been punctured by someone. Both had slept in the bus in the intervening night of 20th and 21st July, 1986. On receiving this information PW-1 woke up and started changing the tyre. The bus was to proceed to Shimla at 7.30 a m. in routine. The allegations further is that while PW-l was changing tyre, 10 or 15 passengers had assembled there. Out of them one lady stated to be the wife of the accused wanted to board the bus and for that purpose she asked PW-1 as to what had happened. The latter is stated to have informed her that since the bus has to ply on one tyre, it was not possible to carry many passengers. At this the accused is stated to have got infuriated which resulted in altercation between the two. The said altercation led to the instant incident. The accused is stated to have caught hold of the driver by his neck and gave him beatings. PW-2 and other local persons gathered there intervened and rescued PW-1 However, due to the aforesaid assault the shirt (P-l) of Dev Raj PW-1, was torn from one side and he also sustained injuries on his person. He brought the bus to Shimla and later reported the incident to the police at 11 a m. on the same date whereupon the first Information report Ex. PW 8/B was recorded. He brought the bus to Shimla and later reported the incident to the police at 11 a m. on the same date whereupon the first Information report Ex. PW 8/B was recorded. The matter was investigated by the police thoroughly and on completion thereof, a criminal case under section 332, I P C. was prima facie, found to exist for which the accused was prosecuted, vide the submission of the challan in the trial Court. 3. To the charge sheet framed against the accused to the said offence, the accused abjured the guilt and pleaded false implication In his statement under section 313, Cr. P. C he raised a defence of denial simpliciter. Prosecution produced nine witnesses on its behalf in support of their version out of which PWs lf 2 and 7 who are eye witnesses and PW-3 the Medical expert, are material witnesses. In rebuttal the defence led do evidence. 4. On appraisal of the evidence, the learned Court below recorded the order of acquittal by taking note of the following circumstances : (1) that Dev Raj PW-1 the injured, did not disclose the true genesis of the occurrence; (2) that there existed abnormal contradiction and discrepancies on material particulars in the statements of the eye-witnesses ; and (3) that no case under section 332, L P. C is made out as PW-1 Dev Raj was not discharging his official duties at the material time inasmuch as PW-1 was not prevented even by the accused from driving the bus to Shimla at the scheduled time, the starting time of which was 7,30 a. m. from village Dargi. The factum of PW-1 Dev Raj being the driver of the vehicle in question and deputed to ply the same to and fro between Shimla and Dargi on 20th and 21st July, 1986 respectively is not disputed by either party to the instant lis. Also the further fact that the bus having started at 7.30 a, m. from village Dargi to Shimla at the scheduled time in routine, is not in controversy. Besides the factum of the shirt worn by the accused having been torn from one side is also not at dispute. The only question before this Court for determination is whether the accused Nokh Ram had participated in the commission of the crime on the relevant date, time and place. 5. Besides the factum of the shirt worn by the accused having been torn from one side is also not at dispute. The only question before this Court for determination is whether the accused Nokh Ram had participated in the commission of the crime on the relevant date, time and place. 5. The first point urged by Shri H. K. Bhardwaj, learned Counsel appearing on behalf of the State is that at the material time Nokh Ram was also one of the persons assembled there and he had taken initiative in scolding PW-1 and then ultimately assaulting him in the manner stated above. According to him PW-1 was in a position to identify the accused as the incident had occurred in the broad-daylight and the learned Court below has wrongly discarded his testimony, by recording that there are material discrepancies in the statements of PWs 1 and 2 Thus according to the learned Counsel the factum of the accused having assaulted PW-i is proved on record by cogent and convincing evidence. 6. The arguments advanced by the learned Counsel are prima facie attractive bat when closely scrutinized they do not link the accused with the commission of the offence. It is to be noted that PW-1 Dev Raj, the injured, has categorically admitted in his examination-in-chief that the accused was a stranger to him and that he did not know his wife as well. If that be so how and in what circumstance the complainant i. e, Dev Raj PW-l mentioned the name of the accused in the first information report Ex, PW-8/B. In fact the injured Dev Raj had been medical examined in the Indira Gandhi Medical Hospital at Shimla at 2-30 p. m. after the first information report was recorded. Therein the name of the accused has not been stated. Rather the document depicts alleged history of beatings by somebody. It means that had the complainant known the name of the accused he would definitely have named him before PW-3 Dr. Deepak Mehrotra. Even otherwise the statements of PWs 1 and 2 are full of contradictions and discrepancies on material particulars. In his examination-in-chief, PW-1 denies having enjoyed the drama which was being played in between the intervening night of 20th/21st July, 1986 but in cross-examination subsequently he admits having gone there and enjoyed said drama. Deepak Mehrotra. Even otherwise the statements of PWs 1 and 2 are full of contradictions and discrepancies on material particulars. In his examination-in-chief, PW-1 denies having enjoyed the drama which was being played in between the intervening night of 20th/21st July, 1986 but in cross-examination subsequently he admits having gone there and enjoyed said drama. Not only this he has specifically been confronted with portions marked A to A, B to B and D to D of his statement Ex P W-l/B made to the police under section 161, Cr. P. C. to the effect that he and PW-2, his companion/conductor, had seen the drama ; that in the following morning at about 5 a. m. the wife of Nokh Ram accused had knocked the window of the bus and that he had told her that the people do not allow them to sleep but later he admitted these facts in the cross-examination. It appears that there had been altercation in between PW-1 and the assailant and rather PW-1 appears to have scolded the lady and the assailant in such a manner that the latter became furious and he then assaulted PW-1. Here it is to be noted that in portion B to B of his statement Ex. PW4/B, PW-1 has named the assailant to be the accused Nokh Ram. How PW-1 was apprised with the name of the accused has not been explained by him before the trial Court. The above said circumstances also show that either the first information report was not properly recorded or it was recorded after investigation had been made by the police. Similar can be the criticism with respect to the statement of PW-2. Both PWs 1 and 2 are closely known to each other. According to the testimony of both these witnesses 10 or 15 persons had collected at the material time who rather rescued PW-1. Why they have not been produced as witnesses in support of the prosecution version remains mysterious. On the contrary one independent witness PW-7 Moti Ram has not supported the prosecution version. He neither is related to the complainant party nor to the accused nor it has been shown that he is in any way interested in the latter. As such in that view of the matter, the trial Court was absolutely right in having discarded the testimony of PWs 1 and 2 respectively. He neither is related to the complainant party nor to the accused nor it has been shown that he is in any way interested in the latter. As such in that view of the matter, the trial Court was absolutely right in having discarded the testimony of PWs 1 and 2 respectively. Even at the time the complainant was repairing the bus it cannot be said that he was discharging the official duties at that time. He can be said to be making preparation for the purchase of discharging his legal duties while he was substituting the punctured type of his bus. Admittedly, the incident occurred at 5. 45 or 6 a. m. and his duty started from 7.30 a. m. onwards. In that view of the matter, the trial Court was absolutely right that essential ingredients of section 332, I. P. C. have not been proved on record. It cannot be said that the approach of the learned Court below was purely wooden, artificial or imaginative in having recorded the order of acquittal vide the impugned judgment. Thus the above said facts and circumstances do raise a great suspicion as to the origin, manner and genesis in which the occurrence had taken place. The prosecution has miserably failed to link the accused with the commission of the offence by producing the evidence In question. In view of the matter, the impugned order is liable to be upheld. 7. In view of the above, the appeal is dismissed. The impugned order is up-held, The appeal stands disposed of in terms of the above. Appeal dismissed.