Judgment Kanwaljit Singh Ahluwalia, J. 1. The present appeal has been filed by Dharamvir son of Hoshiar Singh, jat, resident of village Chimni, Tehsil and District Rohtak. He, along with seven acquitted accused, was tried in case FIR No.36 dated 9.3.1996 registered at Police Station Kalanaur under Sections 147, 149, 332, 333 and 353 IPC. He was tried by the Court of Additional Sessions Judge, Rohtak, who found the appellant to be guilty of offence under Sec.333 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months. 2. Fir Ex. PK was recorded on basis of statement made by Karan Singh son of Bharat Singh. In his statement, Karan Singh stated that he is a resident of House No.733/19, Kailash Colony, Rohtak and was working as Junior Engineer in Irrigation Department. On 8.3.1996, he had deployed labourers in Kahanaur distributory, in discharge of his official duties. At about 2.30 P. M. when he reached at Burji No.162700 he found that one pipe has been fitted unauthorisedly for using canal water. He got that unauthorised pipe removed and plugged the hole in the canal. At about 4.30 P. M. when he reached near Burji No.164000 then one tractor came from the side of kahanaur. About seven/eight persons were sitting on the tractor trolley. Those persons, after alighting from the tractor, dragged the complainant. They gave slap, fist and kick blows. He was given sound beating. At that time, from his right ear, blood started oozing out and his hearing was impaired. Those persons, after giving a push to the complainant in the canal, decamped from the spot riding on their tractor. Complainant stated that if the labourers had not reached at the spot, he would have been given more injuries. On the receipt of information in the Police Station, statement of complainant Ex. PB was recorded on the next day of occurrence i. e. on 9.3.1996 at about 3.30 P. M. As stated earlier, on the basis of statement Ex. PB, FIR Ex. PK was registered. The matter was investigated and report under Sec.173 Cr. P. C. was submitted. 3. On the receipt of information in the Police Station, statement of complainant Ex. PB was recorded on the next day of occurrence i. e. on 9.3.1996 at about 3.30 P. M. As stated earlier, on the basis of statement Ex. PB, FIR Ex. PK was registered. The matter was investigated and report under Sec.173 Cr. P. C. was submitted. 3. Present appellant Dharamvir, along with Munish, Puran Dass alias pony, Kashmir, Ved Pal, Nasib Singh, Puran Dass, and Anand, was charged for offence under Sections 147 IPC, 332 read with Sec.149 IPC, 333 read with section 149 IPC and 353 read with Sec.149 IPC. 4. Counsel for the appellant has drawn my attention to third charge which state that on 8.3.1996 in the area of village Kahanaur, all the above said persons, in common object of unlawful assembly, voluntarily caused grievous injuries to Karan Singh, a public servant, who was discharging his duty as a public servant and thereby had committed an offence under Sec.333 read with Sec.149 IPC. Counsel has stated that at that time there was no material available with the prosecution to charge the appellant substantively for the offence under Sec.333 IPC. 5. Prosecution examined Dr. Subhash Chand Jindal, Registrar, Maharaja aggarsain Institute of Medical Research, Agroha. He stated that on 8.3.1996 at 8.20 P. M. he medicolegally examined Karan Singh. Bleeding from right ear was present and complainant disclosed that his hearing has been impaired. Another injury, a diffused swelling 3 X 2 cm with tenderness was found on the left side of forehead. In cross- examination he admitted that if anybody irresponsibly put nail like stick inside the ear, he is bound to get the injury suffered by the complainant. Karan Singh, injured, appeared as PW.2. He reiterated the version given by him in the statement Ex. PB on basis of which FIR was registered. He further stated that seven/eight persons came on tractor. One of them gave lalkara. All these persons gave slaps and fist blows and kicks with their feet. He started bleeding from his ear. This witness further stated that name of the accused were not known to him but the person standing in the Court were the persons who came in tractor trolley. In cross-examination, he stated that 22 labourers were working under him. They were having kassis. He started bleeding from his ear. This witness further stated that name of the accused were not known to him but the person standing in the Court were the persons who came in tractor trolley. In cross-examination, he stated that 22 labourers were working under him. They were having kassis. Panna Lal and Krishan Lal were the beldars who were on duty along with him at that time. He further stated that pipe was fitted below the level of the bed of the distributory. Pipe was of 5 feet in length. He further stated that he has no knowledge whether any accused was having a land near the point from where pipe was removed. He further stated that he reached the hospital on 8.3.1996 at 6.30 P. M. , and his statement was recorded on 9.3.1996. He further stated that when beatings were given to him, labourers were requesting the accused with folded hands to spare him. Name of the accused were known to the beldars and they had disclosed their names. He further stated that no beldar has received the injury. He had not inquired about the ownership of the fields adjoining the canal. Thereafter, prosecution examined panna Lal as PW.3, who was employed as Beldar. In his statement, Pannal Lal has given the names of four accused namely Dharambir, Munish, Poni and Kashmir. According to this witness, Dharambir came on the tractor. He further stated that Dharamvir, accused, had given slaps on the face of Karan Singh, complainant, Junior Engineer, and, he also gave slaps on the ears of Karan singh. He further stated that he had seen Karan Singh bleeding from his right ear. He further stated that on 14.3.1996 when he had gone to the Police Station to inquire about the progress of the case, at that time he had seen Dharamvir singh accused sitting in the Police Station and the Station House Officer was inquiring from the accused as to whether he had concealed the tractor and dharamvir informed that the tractor has been parked in the kikkar trees behind the water supply work of Chimney village. He accompanied the Station House officer and tractor was recovered. In cross-examination, witness admitted that dharamvir, Munish, Poni and Kashmir were known to him earlier. He further stated that fields of Dharamvir are near the place where the pipe was fitted. 6. He accompanied the Station House officer and tractor was recovered. In cross-examination, witness admitted that dharamvir, Munish, Poni and Kashmir were known to him earlier. He further stated that fields of Dharamvir are near the place where the pipe was fitted. 6. Jai Parkash, Sub Inspector, was examined as PW.4. He deposed regarding various facets of the investigation. PW.5 Dr. Sanjay Sexana opined that due to bleeding from right ear on account of injury, hearing of the complainant was impaired and the response in the right ear was only250 to 4000 hertz. PW.6 Rajinder Singh, Head Constable, was examined regarding the receipt of message from Police Post, Medical College and Hospital, Rohtak, collection of medical report and obtaining of opinion from the doctor. 7. Pw.7 Om Parkash, Head Constable, stated that on 9.3.1996 at 6.10 p. M. he left the Police Station for village Kahanaur. At that time employees of irrigation Department had left at the spot as their duty hours were over and on next day he reached the place of occurrence and recorded the statements of krishan Lal and Panna Lal, Beldars. Mr. Ramesh Hooda, Advocate, appearing for the appellant, has stated that trial Court had not believed the version of complainant Karan Singh, PW.2, and Panna Lal, Beldar, PW.3, qua the other accused and they have been acquitted. A perusal of trial Court judgment reveal that the trial Court came to conclusion that occurrence had taken place on 8.3.1996 at 4.30 P. M. at the bank of Kahanaur minor. Regarding identification of the accused, trial Court observed as under:- "15. Another point which arises for determination is as to identification and participation of accused and then collective or individual acts responsible for the occurrence and injuries to injured PW Karan Singh. 16. Accused Dharamvir, Munish, Orang Dass and Kashmir were arrested by the police on 3.3.1996. Remaining four accused namely Ved Pal, nasib Singh, Puran Dass and Anand were arrested on 14.3.96. On the challan record, there is arrest of one Karam Dass s/o Sultan Singh on 14.3.96 but he has not been put up for trial. From the record it also is not clear if accused Puran Dass s/o Sultan Singh was ever attempted to be got identified at all. On the challan record, there is arrest of one Karam Dass s/o Sultan Singh on 14.3.96 but he has not been put up for trial. From the record it also is not clear if accused Puran Dass s/o Sultan Singh was ever attempted to be got identified at all. However, as far as the remaining seven accused namely Dharamvir, Munish, Puran Dass alias pony, Kashmir, Ved Pal, Nasib Singh and Anand are concerned they had refused to get themselves identified. Their statements to that effect were recorded by the Illaqua Magistrate and it is in these circumstances that the identification parade with respect to these seven accused could not be conducted by the police before putting them to challan. 17. During trial, the prosecution is that the accused were known to PW panna Lal. However, accused-Panna Lal specifically identifies only four of the accused namely Dharamvir, Munish, Puran Dass alias Pony and Kashmir S/o Azad Singh. As far as the remaining four accused are concerned namely Ved Pal, Nasib singh, Puran Dass S/o Sultan Singh and Anand, they are even not identified by pw Panna Lal. As such, as far as these four accused namely Ved Pal, Nasib singh, Puran Dass S/o Sultan Singh and Anand are concerned, the prosecution case becomes doubtful qua them on the point of identification and they for this reason alone are entitled for acquittal". 8. To determine the identification of the accused/appellant Dharamvir, trial Court had observed as under:- "19. First of all let us take up the prosecution evidence concerning accused Dharamvir. He was arrested by the police on 13.6.96 and was produced in Court on 13.6.96 itself and immediately police had applied for their identification parade. However, the accused dharamvir had refused to get himself identified, Illaqua Magistrate recorded his statement to that effect. It is in these circumstances that police could not arrange for the identification parade of accused Dharamvir.20. PW Panna Lal has specifically identified accused- Dharamvir. He also has been identified by injured PW Karan Singh". 9 A perusal of testimony of PW.2 Karan Singh reveal that he has nowhere specifically stated that the appellant has given slap blows on the ear. This fact has been only introduced by Panna lal, PW.3, being an eye witnesses of the occurrence. He has not divulged the version to anybody on 8.3.1996 and 9.3.1996 and his statement under Sec.161 cr. This fact has been only introduced by Panna lal, PW.3, being an eye witnesses of the occurrence. He has not divulged the version to anybody on 8.3.1996 and 9.3.1996 and his statement under Sec.161 cr. P. C. was recorded on 10.3.1996. According to PW.7 Om Parkash, Head constable, when he went at the spot on 9.3.1996, employees of Irrigation department were not available. Panna Lal, PW.3, had not approached any police official. Even otherwise, co-accused, who have been given benefit, had also refused to participate in the identification parade. The identification parade, if held, would have become meaningless as it was stated by Panna Lal, PW.3, that on 14.3.1996 he went to Police Station to know the progress of the case, then he had seen Dharamvir, accused, already sitting in the police station. Jai parkash, Sub Inspector, PW.4, has stated that he had effected the arrest of accused on 13.3.1996 and had applied for identification parade. According to this witness, accused refused to participate in the identification parade. Thereafter, Investigating Officer applied for police remand and the Illaqa magistrate granted remand for two days. However, the application for identification parade and statement of refusal have not been proved on the record. Neither they have been exhibited nor any witness has been examined from the Court staff to say that accused were produced in the Court in muffled faces. Panna Lal, PW.3, has also stated that police had met him for the first time on 10.3.1996 at the place of occurrence. He remained on duty on 9.3.1996 and 10.3.1996. He was not called by Junior Engineer or Sub Divisional Officer. His second supplementary statement was recorded on 14.3.1996. PW.4 Jai Parkash, Sub Inspector, has stated that the statement of Panna Lal, PW.3, was recorded thrice. Only one statement Ex. DA has been exhibited which is regarding the recovery of tractor. 10. Counsel for the appellant has further drawn my attention to Ex. DC to state that on 15.3.1996, in the application, it has been nowhere stated that injury has been caused by present appellant. A perusal of statement of accused/appellant recorded under Sec.313 Cr. P. C. show that in answer to question No.11 it has been stated that appellant had himself surrendered before the police on 13.3.1996. From the above said discussion, following facts emerge:- i) In the FIR, no name of the appellant was mentioned. A perusal of statement of accused/appellant recorded under Sec.313 Cr. P. C. show that in answer to question No.11 it has been stated that appellant had himself surrendered before the police on 13.3.1996. From the above said discussion, following facts emerge:- i) In the FIR, no name of the appellant was mentioned. Name of the appellant first time emerged on 10.3.1996. ii) Panna Lal, PW.3, has only stated that Dharamvir, appellant, had given a slap blow on the ear. On 8.3.1996 and 9.3.1996 he had made no attempt to inform the police. It is only on 10.3.1996 when police reached there and he gave his version in which appellant was named. iii) Panna Lal, PW.3, who had disclosed the names of other four persons has not been believed qua the acquitted accused. iv) Trial Court has held that identification qua other seven accused has not been established as they had refused to participate in the identification parade. Case of the appellant is no different. v) In the remand application also, it was not mentioned that the appellant had caused any injury. There is no evidence as to when Dharamvir, appellant, was produced in the Court and an application for identification was made. vi) On 14.3.1996, Panna Lal, PW.3, states that he had seen Dharamvir sitting in the Police Station. In this context, identification of appellant dharamvir, in the Court, pale into insignificance. Taking into consideration, totality of the above said circumstances, benefit of doubt can be extended to the present appellant. Hence, present appeal is accepted and appellant is acquitted of the charges.