JUDGMENT R.L. Khurana, J. The two appellants, Raj Kumar alias Bhambu and Charan Singh, hereinafter referred to as the accused, stand convicted for the offence under section 307 read with section 149, Indian Penal Code, by the learned Sessions Judge, Una in Sessions Trial No. 23/97 vide judgment dated 3.6.1998 -and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.5000/- each. In default of payment of fine, each of the two accused has been sentenced to undergo imprisonment for a further period of six months. It was further directed that the amount of fine, if realized, shall be paid to the injured Bikram Singh. 2. Briefly, the prosecution story may be thus stated. PW-1 Smt. Vijay Laxmi is the wife of one Ramel Singh of village Bhadsali. The two accused, who are collaterals of the said Ramel Singh, are also resident of the same village. The marriage of Rekha Kumari daughter of PW 1 Smt. Vijay laxmi and a resident of Nikku Nangal in District Ropar (Punjab) had come to village Bhadsali to attend and take part in the said marriage being the maternal uncle of the bride. The marriage party along with the bride returned on 29.10.1995 at about 6.30 PM. Bikram Singh and one Rakesh Kumar (son of PW 1 Smt. Vijay Laxmi) went to see off the marriage party upto some distance and thereafter Bikram Singh is alleged to have gone to the house of one Hans Raj. 3. Arun Kumar, another son of PW 1 Smt. Vijay Laxmi, who had gone to the house of one Mohinder Singh to fetch milk, returned home at about 8.30 p.m. He informed his mother (PW 1) that the two accused along with Husan Chand and Basheshar Singh had attacked and assaulted Bikram Singh and had carried him away in a truck. PW 1 Smt. Vijay Laxmi accordingly informed the police telephonically. On the basis of such information, the police came to the village and recorded the statement Ex. PA of Smt. Vijay Laxmi (PW1) on the basis of which a case for the offences under section 147, 148, 149 and 323, Indian Penal Code, came to be registered at Police Station, Una, vide FIR No. 556/95 (Ex. PW 17/A). 4. On the basis of such information, the police came to the village and recorded the statement Ex. PA of Smt. Vijay Laxmi (PW1) on the basis of which a case for the offences under section 147, 148, 149 and 323, Indian Penal Code, came to be registered at Police Station, Una, vide FIR No. 556/95 (Ex. PW 17/A). 4. The police, during the course of investigation, recovered the above said Bikram Singh (hereinafter referred to as the injured) from the house of accused Raj Kumar, where he was found tied to a mul berry tree with the help of a rope. The injured was sent to primary Health Centre, Gagret in an unconscious State. His medical examination revealed the following injuries on his person vide medico-legal certificate Ex. PW6/A: (i) A lacerated wound over the head 5 cm. Long with irregular mark about 10 cm. Away from the neck, occipital region of the head was bleeding. (ii) A Lacerated wound on the head 10 cm. away from the left ear. (iii) A lacerated wound on the head placed about 12 cm. Away from right ear. The bone underneath was exposed, (iv) A lacerated wound on the head (v) A lacerated wound in between the head and right eye just over the right eye. 5. Since the injuries was found to be serious, the injured was referred to District Hospital, Una from where he was sent to P.G,I. Chandigarh. The injured was operated upon at Chandigarh and he remained confined there till 6,11.1995. 6. The investigation revealed that on 29.10.1995 at about 7 p.m. one Mukhtiar Singh was going to Bus stand, Bhadsali. Shri Surender Singh alias Husan Chand had abused and given fist blows to the said Mukhtiar Singh. The Injured had scolded Surender Singh alias Husan Chand for his having abused and assaulted Mukhtiar Singh. 7. After some time, when the injurd along with his nephews Rakesh Kumar and Sanjiv Kumar (sons of PW-1 Vijay Laxmi) was passing in front of the house of Surender Singh alias Husan Chand ; then the said Surender Singh had started beating the injured. Accused Charan Singh also came there and he also joined Surender Singh alias Husan Chand in giving beatings to the injured. However, the injured was able to escape along with his nephews. 8. Accused Charan Singh also came there and he also joined Surender Singh alias Husan Chand in giving beatings to the injured. However, the injured was able to escape along with his nephews. 8. At about 8.30 p.m. on the same day when the injured was passing through the shop of one Tara Singh in village Badsali, the two accused accompanied by Surender Singh alias Husan Chand, Basheshar Singh, Harjot Singh and Rajodh Singh came there in a truck bearing registration No. HP-20-4892. They attacked the injured with lathies. Basheshar Singh is alleged to have given a blow on the head of the injured with the blunt side of Darat. Thereafter all the said persons carried the injured in the truck to a place near the "Patwarkhana" of village Bahadsali and gave beatings to him there. The injured was then carried in the truck to the house of accused Raj Kumar and tied with a rope to the mulberry tree. Beatings were alleged to have been given to him by Smt. Chachala Devi, Bimla Devi, Puspa Devi and Mandir Singh. 9. During the course of investigation, the two accused and S/Shri Surender Singh alias Husan Cahnd and Basheshar Singh, who were arrested on 30.10.1995 are alleged to have made disclosure statements leading to the recovery of four lathies and a rope, which were taken into possession. 10. On the completion of investigation, the two accused alongwith eight other persons, namely, Surender Singh, Basheshar Singh, Harjot Singh, Mandire Singh, Ranjodh Singh, Pushpa Devi, Chanchala Devi and Bimla Devi were sent up for trial for the offences under sections 307,342, 323, 365, 147, 148 and 149, Indian Penal Code. 11. Both the accused and their other eight co-accused were charged for the offences under section 147, 307, 365 and 307/149, Indian Penal Code. They pleaded not guilty and claimed trial. 12. The prosecution in support of its case examined seventeen witnesses in all. The case of the two accused and their other co-accused was that of denial and false implication. They further pleaded that in fact the injured and his brother in law had come to their house and given beatings to their family members. In defence the two accused had proved on record the case registered against the injured vide FIR Ex. PW1/A on 1.11.1995. , 13. They further pleaded that in fact the injured and his brother in law had come to their house and given beatings to their family members. In defence the two accused had proved on record the case registered against the injured vide FIR Ex. PW1/A on 1.11.1995. , 13. The learned Sessions judge on consideration of the evidence coming on record acquitted all the other eight co-accused of the present two accused of all the offences charged against them. He also acquitted the present two accused of the offences under section 147, 365 and 307 Indian Penal Code. The two accused were, however, convicted and sentenced for the offence under section 307 read with section 149, Indian Penal Code, as aforesaid. 14. Be it stated that the acquittal of the other eight co-accused of all the offences and that of the two accused of the offences under section 147, 365 and 307 Indian Penal Code, has not been assailed by the State by way of an appeal under section 378, Code of Criminal Procedure. Such acquittal has, thus, become final. 15. At the very outset, it has been contended by the learned counsel for the two accused that in view of the acquittal of the two accused and their other co-accused of the offence under section 147, Indian Penal Code and also in view of the acquittal of the other eight co-accused of the offence under section 307 read with section 149, Indian Penal Code, the conviction of the present two accused for the offence under section 307 read with section 149, Indian Penal Code, is bad and liable to be set aside. 16. In the present case, the two accused have not been convicted for the substantive offence under section 307, Indian Penal Code though they were also charged for the such substantive offence. They have been convicted constructively under section 149 Indian Penal Code for the substantive offence under section 307, Indian Penal Code. 17. A Division Bench of this Court in State of Himachal Pradesh V. Maheshi alias Mahesh [1996 (1) Sim. L.C. 265] had an occasion to deal with a similar situation. In the said case six accused were tried for the offences under sections 120-B, 449, 302, 307 and 149, Indian Penal Code. The learned trial court acquitted two accused of all the offences. L.C. 265] had an occasion to deal with a similar situation. In the said case six accused were tried for the offences under sections 120-B, 449, 302, 307 and 149, Indian Penal Code. The learned trial court acquitted two accused of all the offences. One accused was convicted and sentenced for the offences under section 120-B, 449. 302 and 307 Indian Penal Code. The remaining three accused, namely, Ghunghar, Sarvan and Chander Mohan were convicted and sentenced for the offences under section 120-B and 449, Indian Penal Code, as well as for the offences under section 302 and 307 read with section 149, Indian Penal Code. In appeal before this Court, it was contended on behalf of the accused that the learned trial court had gravely erred in convicting three accused for the offences under section 302 and 307 read with section T49, Indian Penal Code. It was Held: "We find substance in this submission and straightaway accept it. It is correct that initially charge was framed and trial was held against six accused persons but on the acquittal of two of them, the remaining four did not form unlawful assembly and section 149. IPC could not be invoked for convicting them under section 302 and 307 IPC as for forming unlawful assembly five or more persons were required. Though perusal of definition of unlawful assembly yet we may refer to some judgments of Supreme court in maina Singh v. State of Rajsthan, AIR 1976 SC 1084; Amar Singh and others v. The State of Punjab, 1988 (1) Chandigarh Law Reporter 10 and K. Nagamalleshwara Rao and others v. State of Andhra Pradesh, 11991 (2) SCC 532, wherein it has been consistently laid down that when initially charge and trial is against five or more persons but ultimately less than five are found guilty and remaining are acquitted, section 149 IPC cannot be invoked for convicting the quality persons and they can be held responsible for the offence, if any, which they have committed without participation of others. Applying the ratio of these judgments to the facts of the present case, we hold that the conviction of accused persons Ghungru alias Modan Lal, Sarvan and Jaind alias Chandermohan under section 302 and 307 with the aide of section 149 IPC does not stand the judicial scrutiny and it is set aside". 18. Applying the ratio of these judgments to the facts of the present case, we hold that the conviction of accused persons Ghungru alias Modan Lal, Sarvan and Jaind alias Chandermohan under section 302 and 307 with the aide of section 149 IPC does not stand the judicial scrutiny and it is set aside". 18. The Division Bench further held that if the accused persons were charged and trial (sic-tried) for the substantive offence with the aid of section 149, Indian Penal Code, they could be convicted and sentenced for the same substantive offence with the aid of section 34, Indian Penal code even though no charge was framed for the substantive offence with the aide (sic-aid) of section 34, Indian Penal Code. Therefore, after setting aside the conviction of the three accused for the offences under section 302 and 307 read with section 149, Indian penal code, they were convicted for the offences under section 302 and 307 read with section 34, Indian Penal Code. 19. The above ratio applies to the facts of the present case on all fours. Once the other eight co-accused were acquitted of the offence under section 307 rea with section 149, Indian Penal Code the present two accused could not have been convicted for the substantive offence under section 307 with the aid of section 149, Indian Penal Code. Such conviction is liable to be set aside. 20. The next question which arises for determination is as to whether the two accused can be convicted for the offence under section 307 with the aid of section 34, Indian Penal Code. If not, whether they can be convicted for any other offence. 21. It is pertinent to not that the injured Bikram Singh has not been examined in the present case to state about the occurrence and the injures sustained by him. 22. The explanation put forth on behalf of the prosecution as per the evidence of PW1 Vijay Laxmi and her son PW2-Sanjeev Kumar, is that after the incident the injured Bikram Singh had become mentally deranged. PW-17 Inspector Kishan Chand, the investigation officer of the case, has deposed that "Bikram Singhs mental imbalance would not be cured till the preparation of the final report which he had incurred in the said incident. As he was not fit to give statement, therefore, his statement could not be recorded. 23. PW-17 Inspector Kishan Chand, the investigation officer of the case, has deposed that "Bikram Singhs mental imbalance would not be cured till the preparation of the final report which he had incurred in the said incident. As he was not fit to give statement, therefore, his statement could not be recorded. 23. The final report in the present case was submitted to the court on 29.2.1996 in the court of Chief Judicial Magistrate, Una and the case came to be committed by him to the court of Sessions on 1.8.1996. Thereafter the trial continued till 3.6.1998. No medical evidence is forthcoming to show that the injured Bikram Singh was unable to depose due to his mental disability, Ex.PW-16/B-1 is the last opinion recorded by PW-16 Dr. Jayant Verma on 22.11.1995 to the effect that the injured was not fit to make a statement. Such opinion was given during the investigation of the case. 24. In the absence of relevant evidence that the injured due to his mental state was not fit to make a statement, the explanation put forth by the prosecution about the non-examination of he injured during the course of trial cannot be accepted. It is further significant to note that PW-1 Sanjeev Kumar while appearing as a witness on 17.11.1997 during the course of his cross-examination has categorically admitted that the injured was working as a Driver at Delhi. If the inured during the course of trial of the case in the year 1997 was working as a driver at Delhi, it cannot be believed that he was not in a fit state to made a statement in the case. Thus, the non-examination of, the injured has remained unexplained. 25."The question which arises for determination is as to what is the effect of non-examination of the injured on the prosecution case. 26. In Bhaskar Chandra Pati & ors v. State of Orissa [1994 (2) Crimes 576] the two injured were not examined for the purpose of proving the offence under section 323 read with section 149, Indian Penal Code. A contention was raised before the Orissa High Court that the accused persons could not be convicted for the offence since the two injured were not examined by the prosecution. It was held: "In order to prove the injures on any person, it is not always necessary to examine the injured. A contention was raised before the Orissa High Court that the accused persons could not be convicted for the offence since the two injured were not examined by the prosecution. It was held: "In order to prove the injures on any person, it is not always necessary to examine the injured. If the injury on the injured is otherwise proved, as has been done in the present case, then the person causing the injury is liable to be convicted". 27. In Shyam Niranjan Dubey and others v. State of U.P. [AIR 1974 Supreme Court 541] were the person hurt had not entered the witness box nor the injures sustained by him were proved, it was held that no conviction for the offence under section 323 read with section 34, Indian Penal Code could be sustained. 28. Thus, the settled position is that when the injuries are proved to have been suffered by the person hurt, conviction can be sustained even if such person hurt has not stepped into the witness box. 29. In the present case, therefore, it is to be seen if the prosecution had been able to prove that the injured had sustained the injuries in the occurrence as alleged by it. 30. Ex. PW 6/A is the medico legal certificate of the injured Bikram Singh. This certificate was issued by PW 6 Dr. Rajiv Kumar after medical examination on the injured having been brought to him in an unconscious state. Ex. PW 16/Aand Ex. PW 16/C are the copies of the treatment record when the injured Bikram Singh is alleged to have remained under treatment at P.G.I., Chandigarh. 31. It is significant to note that the abovesaid medical evidence has not been identified with the injured Bikram Singh brother of PW 1 Smt. Vijay Laxmi. Neither PW 6 nor PW 16, the two doctors who had examined/ treated the injured Bikram Singh have identified the injured. In fact the injured was not even shown to them for the purpose of identification when they appeared as witness in the present case. Therefore, it cannot be safely held that Ex. PW 6/A, PW 16/A and PW 16/C were issued in respect of the injured Bikram Singh Brother of PW 1 Smt. Vijay Laxmi. 32. Admittedly, PW 1 Smt. Vijay Laxmi is not an eye witness of the occurrence. Therefore, it cannot be safely held that Ex. PW 6/A, PW 16/A and PW 16/C were issued in respect of the injured Bikram Singh Brother of PW 1 Smt. Vijay Laxmi. 32. Admittedly, PW 1 Smt. Vijay Laxmi is not an eye witness of the occurrence. According to her she was informed about the occurrence by her son Arun Kumar. This Arun Kumar, who is alleged to have witnessed the occurrence, has not been examined in the present case. Though he was present in the court on 17.11.1997.on having been summoned as a witness, he was given up by the prosecution. 33. Though PW 2 Sanjeev Kumar son of .PW 1 Smt. Vijay Laxmi has been examined as an eye witness of the occurrence., his presence at the spot is highly, doubtful. Admittedly, he was not accompanying the injured at the relevant time. He had gone to return the utensils which his family had borrowed from different persons of the village in connection with the marriage of his sister. His brother Rakesh Kumar was accompanying the injured. This Rakesh Kumar also has not been examined in the present case and was given up by the prosecution though he too was present in court on 17.11.1997 on having been summoned as a witness. 34. P W 2 Sanjeev Kumar has deposed that he was also hit with the Darat on the thumb of his right hand by Basheshar co-accused of the present two accused. No. Injury sustained by PW 2 has been proved as a result of such assault. It is not the case of PW 2 that he had tried to intervene to save his uncle, the injured Bikram Singh. He appears to have remained a silent spectator. According to PW 2, his other two brothers Arun Kumar and Rakesh Kumar had also seen the occurrence. No attempt even appears to have been made by them to save their uncle from assault. They also appear to have remained silent spectators. It is highly improbable that PW 2 and his two brothers would have remained silent spectators to the assault involving their maternal uncle and they would not have intervened to save their uncle or even shout for help. Admittedly the occurrence is alleged to have taken place in the middle of the village. It is not that no help would have been available. Admittedly the occurrence is alleged to have taken place in the middle of the village. It is not that no help would have been available. PW 2 during his cross examination has admitted as under: "I was returning to my house at about 6.15 P.M. after returning the utensils. The assault had been initiated by the accused before my arrival on the scene of the occurrence. I have disclosed about the assault made by Charan Singh, Raj Kumar and Bisheshar Singh in the court today for the first time because in the past no competent person had asked me. I did not tell this fact to the police." 35. It cannot be believed that had PW 2 been at the spot at the relevant time and had seen the assault of his maternal uncle, he would have remained quiet for about two years, till his examination in court on 17.11.1997 The only inference is that PW 2 was not present at the spot and appears to have been introduced as a witness as an afterthought. [See: Khem Chand V. State of H.P. 1998 (1) Curr.L.J. (HP) 214]. 36. PW 3 Dildar Singh, who runs a tea stall in the village and in whose tea stall PW 2 is alleged to have taken shelter at the time of alleged occurrence, has deposed that he was informed by RW2 Sanjeev Kumar and his brother Rakesh Kumar about their uncle having been assaulted by the two accused and their other co-accused. As stated above, PW 2 has admitted that he did not disclose about the occurrence to any one. It is not in the statement of PW 2 that his brother Rakesh Kumar had accompanied him to the tea stall of PW 3. According to him, his brother had run away from the spot. Therefore, no reliance can be placed on the testimony of PW 3. 37. If the evidence of PW 1 Smt. Vijay Laxmi, PW 2 Sanjeev Kumar and PW 3 Dildar Singh is ignored., there is no evidence worth the name against the two accused. 38. There is yet another circumstance which renders the prosecution case doubtful. Information to the police about the injured Bikram Singh having been assaulted was given by PW 1 Smt. Vijay Laxmi on telephone. Ex. PW 13/A is the copy of daily diary report recorded in this regard. 38. There is yet another circumstance which renders the prosecution case doubtful. Information to the police about the injured Bikram Singh having been assaulted was given by PW 1 Smt. Vijay Laxmi on telephone. Ex. PW 13/A is the copy of daily diary report recorded in this regard. A perusal of the same shows that information to the police was given to the effect that her brother Bikram Singh had been assaulted by 2/4 persons and carried away to an unknown place in truck No. HP-20-4892 and that action be taken. Neither the names of assailants were given or it was disclosed as to where the injured was taken away in the truck. 39. PW 15 Head constable Jeet Singh, who had gone to village Bhadsali on receiving the telephonic information from PW 1 Smt. Vijay Laxmi, has deposed that from the police station he had gone straight to the house of accused Raj Kumar and reached there by about 10.30 P.M. He is alleged to have rescued the injured from there on finding the injured tied to a mulberry tree with the help of the rope. 40. Nothing has come in evidence as to how and why PW 15 had gone straight to the house of accused Raj Kumar. Ordinarily he should have gone to PW 1 to know about the details of the case. Further PW 15 has admitted that he had remained with the injured at the hospital till midnight and that no investigation was carried out by him on that day. He did not even record the statement of any one. 41. Ex. PA is the statement of PW 1 Smt. Vijay Laxmi recorded under section 154, Code of Criminal Procedure. This statement is shown to have been recorded by PW 15 at the hospital on 29.. 10.1995, that is, the date of occurrence, PW 15, however, in his deposition made in court did not state that such statement was recorded by him. He on the other hand is categorical in stating that the statement of no one was recorded by him on that day. PW 1 Smt. Vijay Laxmi has gone to State that he statement Ex. PA was recorded at her house. Therefore, the only inference is that Ex. PA came to be recorded after due consultation and deliberations and the same has been ante-timed and ante-dated. 42. PW 1 Smt. Vijay Laxmi has gone to State that he statement Ex. PA was recorded at her house. Therefore, the only inference is that Ex. PA came to be recorded after due consultation and deliberations and the same has been ante-timed and ante-dated. 42. PW 2 Sanjeev Kumar has deposed that his uncle injured Bikram Singh was rescued by the police from the house of accused Raj Kumar and taken to the hospital. He has further deposed that the injured was tied to a tree in the house of accused Raj Kumar. 43. If the injured was rescued by PW 15 from the house of accused Raj Kumar where he was found tied to the tree as stated by PW 2 there is no explanation as to why the necessary memo with regard to the recovery of the injured from the house of accused Raj Kumar was not prepared. Even the rope with which the injured was found tied was not taken into possession. Such rope is shown to have been recovered at the instance of accused Raj Kumar in pursuance of a disclosure statement alleged to have been made by him. 44. The evidence coming on record does not prove beyond, reasonable doubt that any injures were caused by the two accused to the injured Bikram either with the intention to kill him or with the intention of causing hurt. Therefore, the two accused cannot be held to have committed the offence either under section 307 read with section 34, Indian Penal Code or any other offence of having caused hurt to the injured Bikram Singh. 44. As a result, the present appeal is allowed The conviction and sentence imposed upon the accused by the learned trial court are set aside and they are acquitted accordingly. The amount of fine, if already deposited, shall be refunded to the two accused. 45. Each of the two accused is on bail pursuant to the order dated 26.1998 of this court. Their bail bonds shall stand cancelled and discharged. -