Oral evidence of a police constable and other witnesses is admissible to prove that he was on patrol duty, even in the absence of the command certificate, if the court is satisfied that the evidence is reliable and trustworthy.

JUDGMENT :

G.K. Misra, C.J. - Petitioners have been convicted u/s 332, Indian Penal Code and sentenced to R.I. for six months each. Prosecution case may be stated in short. On 26th of December, 1968 command certificates were issued to the constables (p.ws. 5 and 11) for village patrol duty. On 28th of December, 1968 p.w. 11 visited village Badasahi. At about 7 p.m. that day Petitioner Guljar abused p.w. 11 saying that constables were frequently visiting the village and they should be beaten. He was in a drunken state and dealt a lathi blow on p.w. 11. Guljar called his two brothers the other two Petitioners. They came armed with sticks and assaulted p.w. 11 who called for help. P.ws. 1, 2 and 8 came to the rescue of p.w. 11. By then the Petitioners had fled away. P.w. 11 lodged F.I.R. Ext. 2. Certain injuries were found on him on medical examination.

Petitioner Guljar took a specific defence that p.w. 11 was drunk and had asked him to arrange a female for him. On Guljar?s failure to do so p.w. 11 abused him. The other two Petitioners took to a plea of denial. Both the Courts below accepted the prosecution case and rejected the defence version.

2. Mr. Murty for the Petitioners challenged the concurrent finding as also the sentence. He took me through the evidence of p.ws. 1, 2, 8 and 11. After going through their evidence I am satisfied that the evidence was correctly assessed by the learned Courts below and there is no scope for interference with the finding of fact that the Petitioners assaulted the police constable p.w. 11 who had been on village patrol duty.

3. Mr. Murty next contended that the command certificate issued to p.w. 11 to be on patrol duty on 28-12-1968 has not been produced and as such secondary evidence is not admissible to prove the contents of the command certificate that p.w. 11 was on patrol duty at the time of occurrence. Such a contention was not advanced before the trial Magistrate and was for the first time taken before the learned Sessions Judge. The relevant materials on this aspect would be found from the evidence of p.ws. 5, 9 and 11. P.w. 5 stated that on 26-12-1968 he and p.w. 11 went for village patrol duty from Jujumura police station. In cross-examination he answered that he had not brought the command certificate. P.w. 9 was the Officer-in-charge of Jujumuru police station at the relevant time. He deposed that command certificate had been issued to p.w. 11 for village visiting duty on 26-12-1968 and that without reference to the command certificate he was not in a position to say as to for how many days it was valid. He denied the suggestion that he had not issued any command certificate. P.w. 11 stated that he was deputed on village patrol duty from 26-12-1968 and he was on duty on 28-12-1968 at 7 p.m. It was elicited from him in cross-examination that he had taken his command certificate with him and when Guljar dealt the first blow on him his Pugree slipped down. The oral evidence of these three witnesses satisfactorily establishes that command certificates had been issued to p.ws. 5 and 11 on 26-12 1968 to do village patrol duty and both of them had gone out on such duty that very day. It is remarkable that no question was put in cross-examination to p.w. 11 that he was not on duty on 28-12-1968. The oral evidence leads to the conclusion that p.w. 11 was on duty on the date of occurrence.

4. Relying on Section 114, Illustration (g), of the Evidence Act, Mr. Murty contends that due to the failure of the prosecution to produce the command certificate in Court secondary evidence is not admissible and the oral evidence of p.ws. 5, 9 and 11 should he excluded from consideration.

Section 114 runs thus:

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (g). The Court may presume that evidence wh