IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 430 of 2000. Date of decision: 01.12.2010. State of H.P. ….. Appellant. Vs. Hari Parshad …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. R. K. Sharma, Sr. Addl. A. G. For the respondent : Mr. Ashok Tyagi vice Mr. Anand Sharma, Advocate Sanjay Karol J. (Oral. Accused Hari Parshad stood tried for having committed offences punishable under Sections 324 and 326 of the Indian Penal Code. Offence is alleged to have taken place on 16.3.1993. According to the prosecution, Hari Parshad was in the habit of playing music at full volume. His neighbour Shiv Kumar had school going children and were disturbed of the music. Inspite of requests made to him accused did not reduce the volume of the music. On 16.3.1993 at about 8.30 P.M., Shiv Kumar entered the factory premises of the accused and asked him to slow down the volume of the tape recorder. Accused gave a blow with ‘Khukhri’ on Whether the reporters of the local papers may be allowed to see the Judgment? 2 the head of Shiv Kumar as a result of which he received injuries on the right temporal region of his head. Manish Kumar and Purshotam Agnihotri arrived at the spot and rescued Shiv Kumar from the clutches of the accused. Even they sustained injuries. Manish Kumar snatched ‘Khukhri’ from the accused who escaped from the spot. Shiv Kumar reported the matter at the Police Post, City Chamba, on the basis of which F.I.R. No.110/93 (Ext.PW-5/B) dated 16.3.1993 was registered with Police Station, Sadar Chamba under Sections 323, 324 IPC. Complainant was got medically examined. With the completion of investigation challan was presented in the Court for trial and the accused was charged for the aforesaid offences, to which he did not plead guilty and claimed trial. 2. Trial Court, in terms of its judgment dated 25.6.1998, upon consideration of the material on record placed by the parties, held the accused guilty of having committed an offence punishable under Section 326 IPC and sentenced him to undergo rigorous imprisonment for a period of one year and pay fine of `.1000/- and in default thereof further undergo simple imprisonment for a period of one month. 3. Aggrieved of the same, accused Hari Parshad preferred an appeal and in terms of judgment dated 5.4.2000 passed by learned Sessions Judge, Chamba, in 3 Criminal Appeal No.24 of 1998, he stands acquitted of the charged offence, hence the present appeal. 4. It has been argued by Sh. R. K. Sharma, learned Addl. Advocate General that lower Appellate Court erred in arriving at the conclusion that no injury was reported to have been suffered by the complainant on the right temporal region. 5. We have carefully examined the statements of the prosecution witnesses. From the statement of Sh. Purushotam Agnihotri (PW-9) as also the site plan (Ext.PW-10/A), it is quite apparent in fact stands established that complainant had entered into the property of the accused. Alleged incident also took place in the factory premises belonging to the accused. It also stands established from the record that cross FIRs were lodged by the parties. Complainant stands acquitted in the case registered against him by the accused. It is a matter of fact that both sides had suffered injuries. Question is who is the assailant? 6. Record reveals that without any permission or authority Shiv Kumar had entered into the property of the accused. Statements of the parties are at variance with regard to the exact events which took place at the spot. Other than complainant Shiv Kumar, admittedly all other prosecution witnesses arrived at the spot much after the exact incident had taken 4 place. What really transpired at the spot, cannot be said to be proved beyond reasonable doubt. 7. Lower Appellate Court, while acquitting the accused has observed as under:- “8. Learned counsel for the appellant has argued that in fact no grievous injury was caused on the person of Shiv Kumar by the appellant, but by misleading the Court, the prosecution managed to get the appellant convicted for the offence under Section 326 IPC. To support his contention, he has drawn my attention towards cross-examination of PW-8 Dr. Hemant Sharma. Dr. Hemant Sharma has stated in the cross-examination that the injury shown in the figure mentioned in Ext.PW-8/A was the only injury which was found at the time of examination. He has further stated that the fracture that was found in the right front parietal region was not observed at the place of wound. This cross-examination suggests that when injured Shiv Kumar was examined at the hospital at Chamba, he suffered only one injury, the description of which had been given in Ext.PA and it is in the left side of the temporal region. In Ext.PW-8/A a sketch of the face Ext.PA has been prepared wherein an injury has been shown just adjacent to the eye. The injured was advised X-ray which was taken by PW-4 Dr. V. K. Pathak, Radiologist who found a fracture on the right side of the front parietal bone of the skull. To ascertain whether the right side of the right parietal frontal bone was not stated by the doctor by mistake, the location of the injury was again enquired by the learned defence counsel in the 5 cross-examination of this witness, but even in cross-examination, he has stated that the fracture was on the right side of the head area. The doctor also saw the skiagrams and encircled the skiagrams where he observed the fracture. 9. The statements of PW-4 Dr. V. K. Pathak and PW-8 Dr. Hemant Sharma clearly suggest that the injury suffered by Shiv Kumar at the time of alleged occurrence was not a grievous injury. It may be probable that the report of the doctor V. K. Pathak Ext.PW-4/A might be with respect to some person other than Shiv Kumar injured and that other person might be having a fracture on the right frontal parietal bone. Since the injured was not identified in the Court by Dr. V.K.Pathak, it can be safely said that the prosecution has failed to prove that any grievous injury was suffered by PW-1 Shiv Kumar in the alleged occurrence. 10. As a result of my above discussion, it can be safely said that the offence under Section 326 IPC is not made out against the appellant and the learned Chief Judicial Magistrate, Chamba had erred in convicting him for the same. However, it has to be seen whether the offence under Section 324 IPC is made out against the appellant and for this purpose, I will like to discuss the prosecution evidence again.” 8. From the record, it could not be pointed out as to how the aforesaid findings were either perverse or not born out from the record. We have ourselves examined the record and are convinced that 6 no error, in proper and complete appreciation of the evidence, has been committed by the lower Appellate Court. 9. PW-8 admits that no fracture was found at the place of wound. Now if this was so then obviously injuries in relation to which the accused was charged by the trial Court cannot be said to have arisen out of the incident in question. Thus, to our mind no ground for interference is made out. 10. Importantly, we also noticed that accused was initially examined by Dr. Hemant Sharma (PW-8) on 16.3.1993 and Dr. V. K. Pathak (PW-4) on 18.3.1993. There was a time gap of two days between the examination. What transpired during the intervening period has not been clarified by the prosecution. The injury on which the prosecution relies upon could have been suffered during this period. 11. The accused has had the advantage of having been acquitted by the lower Appellate Court. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the lower Appellate Court has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. 7 The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge December 01, 2010 (rana)