- (1.) Respondents No. 2 to 7 had faced trial in a complaint filed by the applicant under Section 323, 325, 506 read with Section 34 of the Indian Penal Code, 1860 ('IPC' for short). Case of the applicant-complainant was that on 17.9.2006, he had gone to the funeral ground for taking a bath and he noticed that accused Bhuri, Kallu, Girraj, Madan and Sunder were abusing his brother Raju. When the applicant objected, accused got angry and accused Bhuri gave a lathi blow on the face of the applicant whereas accused Sunder gave a lathi blow on the left knee of the applicant. Madan gave punch and kick blows to the applicant and his brother Raju. Kallu gave an iron punch on the teeth of the applicant. Accused Girraj gave a lathi blow on the right ankle and jaw of the applicant. Accused Ramesh gave a lathi blow on the forehead of the complainant. All the accused gave kick blows and punches to Raju. On an alarm raised by the applicant, Kallu and Daya Ram rescued them. DDR No. 3 was recorded in Police Station Hodal on 17.9.2006 itself. X-ray examination of the complainant was conducted on 18.9.2006. Applicant led his preliminary evidence in support of his case. Thereafter, accused was ordered to be summoned to face trial. Applicant led his pre-charge evidence and charges were framed against the accused under Section 323, 325, 506 read with Section 34 IPC.
(2.) In after charge evidence, applicant appeared himself in the witness box as PW-1 and did not examine any other witness. The Trial Court vide impugned order dated 30.5.2014 ordered the acquittal of respondents No. 2 to 7. Hence, the present application under Section 378(4) of the Code of Criminal Procedure, 1973 praying for leave to appeal by the complainant-applicant. Learned counsel for the applicant has submitted that the Trial Court has erred in ordering the acquittal of respondents No. 2 to 7 as the applicant had been successful in proving his case.
(3.) The Trial Court while ordering the acquittal of respondents No. 2 to 7, has held as under:- "8. After hearing the rival contention of ld. Counsel for the parties and after going through the oral as well documentary evidence produced on record, I am of the considered view that it is the case of the complainant that on 17.9.2006, accused persons, in furtherance of their common intention caused injuries to him and his brother Raju at the funeral ground. They were saved by Dayaram and Kallu. Complainant was taken to hospital by Ct. Amar Singh after he had got recorded his DDR No. 3 dated 17.9.2006 in the police station. But from it is apparent that the alleged incident had happened on 17.9.2006, whereas the present complainant has been filed on 17.11.2008, i.e. after more than two years from the date of alleged incident. Though the complainant has tried to explain the delay of almost 2 years and 2 month by stating that he has been trying to arrange the copy of the MLR during this period as the doctor who had conducted his medical examination, had proceeded on leave. But this explanation of the complainant is not satisfactory enough and is not sustainable for a simple reason that the copy of MLR is given to the patient on the date of his examination and in case, it is not provided on the same date, it remains in the hospital and can be easily obtained within a day or two. 9. Moreover, the complainant has not examined his brother Raju in the present case, who was the injured and the eye witness to the incident, as per the complainant. No reason whatsoever has been cited by the complainant for non examination of the such a material witness. No medical of Raju was got conducted in the present case, whereas as per the complainant, accused persons have also caused injuries to Raju. Hence, non examination of Raju, cast clouds on the case of the complainant. 10. As far as the testimonies of Dayaram (CW1) and Kallu (CW5) is concerned, as per the complainant, the above said persons have came to the spot after hearing the hue and cry of the complainant and his brother Raju, so they are not supposed to have any knowledge regarding the alleged injuries caused by the accused persons to the complainant and Raju. 11. It is pertinent to mention here that, the accused Madan and Girraj have filed a criminal complaint against the brother of the complainant, Raju and others, who have been convicted by the court of Sh. Vikas Gupta, Ld. SDJM, Hodal vide order dated 10.3.2014, under Section 323, 325, 452, 506 r/w 34 IPC. The copy of the judgment has been placed on record as Ex. D1. The above said complaint was also filed with respect to the incident dated 17.9.2006. For this complainant has stated that, when the accused persons were beating him, some neighbors have caused injuries to them while saving the complainant. The complainant did not disclose that Raju, his brother was one of the assailants, who caused injuries to the accused persons on 17.9.2006. 12. Moreover, it is hard to digest as to how the focus of the accused persons have suddenly shifted to the complainant, when they allegedly in the abusing his brother Raju. This position could have been cleared, if the complainant would have examined his brother Raju. Further pendency of a criminal complaint against the family of the complainant, could be reason of present complaint as it has been held by the Hon'ble Punjab and Haryana High Court in Davinder Vs. State of Haryana, 1998 2 RCR(Cri) 782, that , "Enmity is double edged weapon, as it may provide a motive for crime and also for false implication.";