JAIN, J. - (1.) FIVE accused persons, namely, Devi Singh, Laxman Singh, Phakira, Manak Chand and Kami Dan, were tried by the Sessions Judge, Churu for the offences under Sections 395, 294, 323 and 341, IPC. However, all the accused persons except Devi Singh were acquitted of all the offences. Devi Singh was also acquitted of the offences under Sections 294 and 395, IPC. He was, however, convicted of the offences under Sections 323 and 341, IPC. He was sentenced to three months' rigorous imprisonment and to pay a fine of Rs. 31/-, in default, to undergo further rigorous imprisonment for a period of ten days for the offence under Section 323, IPC, and for the offence under Section 341, IPC he was sentenced to 15 days' rigorous imprisonment and to a fine of Rs. 51/-, in default to further undergo ten days' rigorous imprisonment. Both the substantive sentences were ordered to run concurrently, vide judgment dated 20-9-1977.
(2.) THE prosecution case may briefly be stated as follows: Anil Airan (PW 7) with his younger sister Minakshi Airan were returning after seeing the second show at Vishwa Jyoti Cinema House in the night of 11-6-1976. Both of them were returning on a scooter. At about 12. 30, a. m. , they found the gate at the railway crossing closed, so they stopped at the gate. THE gate was opened. THEy proceeded. A car No. RSM 9868 was following that scooter and that car even struck against the scooter twice, even when the scooterist was giving sides to the car. THE boarders of the car were teasing Minakshi. This was also observed by Flight Lieutenant Shri P. K. Roy (PW 3), who was also returning with his Mrs. Anita Roy (PW 4) on a scooter. THEre five boarders of the car. Anil Airan thinking that it would be unsafe, stopped his scooter at Damani Petrol Pump, where the car was also stopped. Mr. P. K. Roy offered his help to Anil Airan and questioned the boarders of the car, who had come out of the car. One of the boarders of the car caught hold of him by his collar and others started misbehaving with him. One of them struck a blow on his temple, whereby he fell down. THE boarders of the car started assaulting. Mrs. Anita Roy, in order to rescue her husband, intervened. THEreupon, she was also belaboured. Mr. P. K. Roy asked Anil Airan to inform the police, whereupon Anil Airan informed the Police Station, Kot-gate at about 1. 05, a m. On receipt of the telephonic message that a quarrel has taken place at Damani Petrol Pump Sujan Singh S. H. O. , along with the police party, proceeded to the spot and he recorded the statement of Anil Airan. On the basis of that report case under Sections 249, 394 and 341, 1 PC, was registered. Mr. P. K. Roy and his Mrs. Anita Roy, were medically examined and the investigation was conducted. After completion of the investigation, charge-sheet was put up against the five accused persons before the Chief Judicial Magistrate. Bikaner, who committed the case before the learned Sessions Judge, Bikaner. THE Sessions Judge, Bikaner transferred the case to the Additional Sessions Judge, Churu, to be tried at Bikaner, but the Additional Sessions Judge, Churu, complete the trial and the Court of Additional Sessions Judge, Churu, was upgraded as Sessions Court. After trial by the Sessions Judge, Churu, the learned Sessions Judge, convicted and sentenced the appellant Devi Singh, as aforesaid, and acquitted the other four accused persons of all the offences and he also acquitted the appellant of the offence under Sections 294 and 395, I. P. C. I have heard Shri M. S. Singhvi, learned counsel for the appellant and Shri Niyazuddin Khan, learned Public Prosecutor, for the State and perused the record of the case. The appellant has been found guilty of the offences under Sec. 323 and 341. I. P. C. As regards the offence under Sec. 323, I. P. C. it may be mentioned that in the incident Mr. P. K. Roy and Mrs Anita Roy were injured. They had the following injuries:- MR. R. K. ROY: (1) A defuse swelling over left lower eye lid measuring about 2" x 1" in size. (2) A defuse swelling on left temporal region measuring about 1-1/2" x1/4" in size. (3) A multiple abrasions on front side of the neck measuring about each 1" x 1/1/6". (4) Patient complained of pain in both of gluteal region but there is no external mark of injury. (5) Patient complained of pain in chest, but there is no external mark, of injury. MRS. ANITA ROY : (1) Multiple abrasions each measuring about 1/2" x 1/4" in size on right lower part of the lower hand. (2) A defuse swelling on right upper part of upper arm. (3) Patient complained of pain in waist but there is no any external mark of injury. Their injuries were examined by Dr. Sharad Chand Calla on 11-5 1976. The only question, which requires consideration is as to whether the appellant caused any hurt to any of the injured persons ? My attention has been drawn to the statement of R. K. Roy (PW 3), who has stated that after sustaining injuries on the temple region, he fell down and thereafter he was assaulted. In the examination-in-chief he stated that when he tried to got up, all the five accused persons did not allow him to get up and all the five started pulling him when he was laying prostrate. In cross-examination he, however, stated that after having fallen on the ground prostrate, on that account he cannot say as to whether all the five accused persons participated in the assault and he also cannot state as to who inflicted the fist blow behind his ear. It is true that from his statement it is not established that the appellant Devi Singh was one of his assailants, but there are statements of other witnesses, who have deposed that all the five boarders assaulted Shri R. K. Roy. Mrs. Anita Roy has deposed that when her husband had fallen, all the accused persons started pulling his and beating him with fists. In her examination-in-chief, she stated that all the five accused persons participated in the assault and dragging of her husband. It is significant to note that the appellant Devi Singh was apprehended by Mrs. Anita Roy followed by her husband Mr R. K. Roy and the appellant was not allowed to move and immediately handed over to the police and the police appeared soon after the occurrence on receipt of the telephonic message. This fact is well proved that the appellant was one of the boarders of the car, as he was caught hold of at the time of the incident. Minakshi (PW 6) corroborated the testimony of Mrs. Anita Roy, She has deposed that the boarders of the car assaulted Mr. Roy. My attention was invited to the cross examination of Minakshi, where she stated that she cannot say as how many persons were pulling Mr. Roy after he had fallen down on the ground. It may be mentioned that this part of the statement does not refer to the actual assault. It only relates to the act of pulling or dragging. Thus, from the evidence on record, in my opinion, it is established that one of the miscreants was Devi Singh appellant and he was one of them, who also participated in the assault of Mr. Roy, so offence under Sec. 323, IPC, is proved against him. With respect to the offence under Sec. 341, IPC there is a clear and categorical statement of Shri R. K. Roy. He has deposed that then he tried to get up, he was not allowed to do so and was prevented from moving after he had fallen down. Mrs. Anita Roy has not stated in so many words, but she does state that after her husband had fallen, the boarders of the car started dragging him. From the statement of Mr. R. K. Roy himself, in my opinion, offence under Sec. 341, IPC is proved against the appellant. The charge under Sec. 341, IPC, relates to causing of wrongful restraint to Shri R. K. Roy as well as to Mrs. R. K. Roy. Even if it is established in relation to Shri R. K. Roy, then for him alone the appellant can be held guilty of the offence under Sec. 341, IPC. In my opinion, learned Sessions Judge was right and justified in convicting the appellant for the offence under Sections 323 and 341, IPC.
(3.) COMING to the question of sentence, it may be mentioned that more than seven years lapsed, so it would not be proper to send the appellant behind the bars and it would be appropriate that he may be given the benefit of probation. In the result, the appellant's appeal is partly allowed. The convictions of the appellant are maintained. His sentences, however, are set aside and instead of sentencing him it is ordered that he shall be released on his entering a personal bond for a sum of Rs. 2,000/- (rupees two thousand) with one surety in the like amount to the satisfaction of the Sessions Judge, Churu, to appear and receive sentences whenever he is called upon to do so during the period of six months and in the meantime to keep the peace and be of good behaviour. The learned counsel for the appellant prays from one month's time to submit the requisite bonds. Time prayed for is allowed. . ;