IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 539 of 2001 Date of decision: 5. 6. 2009 State of H.P. …..Appellant Versus Vijay Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Vikas Rathore, Dy. Advocate General, For the respondent: Mr. Suneet Goel, Advocate. Surinder Singh, J. (Oral) The respondent was acquitted for the offences punishable under Sections 341, 323, 325 and 506 of the Indian penal Code by the learned trial court in criminal case No. 76- 2/2000 decided on 10.7.2001. The State has challenged the acquittal of the respondent on the ground that the learned trial court did not appreciate the evidence on record in a right manner. Heard and gone through the evidence on record. In short, the prosecution story is that there was a public tap in the vicinity of the complainant and the Corporation had been 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - releasing the water for a short time in the morning, which caused rush at the tap. It was this reason that on 29.9.2000 at about 5.30 a.m., the complainant along with his family members and the respondent appeared to have queued up for waiting their turn to fill the water in their vessels. It is alleged that the respondent was also there and restrained the complainant PW-3 Ashok Kumar to take the water from the public tap which was resisted by him on the ground that it was not his personal tap. Thereafter, the respondent is alleged to have thrown a stone on the complainant which, ultimately hit his son PW-4 Sanny on the left side of the face. Thereafter he was removed to the Ripon Hospital where he was medically examined by PW-9 Dr. R.P. Chauhan at 6.10 a.m. The police was also informed. PW-7 Head constable Rattan Singh reached the Hospital and recorded the statement of PW-3 Ashok Kumar under Section 154 of the Code of Criminal Procedure. Clinically the doctor noticed bleeding injury on the left side of the face. Injured was referred to the X-ray which was conducted by PW-6 Dr. Balprit Kaur. On the basis of the X-ray she opined that there was a fracture in the upper incisor tooth. To this effect, the opinion was given - 3 - by her on the reverse side of the M.L.C. (Ext. PW-6/A.) The police registered the case under Sections 341, 323 and 506 and added Section 325 of the Indian Penal Code. The site plan Ext. PW-7/A with respect to the place of occurrence was also prepared. The police recovered the stone Ext. P-2 from the spot and took it into possession vide memo Ext. PW-1/B. The blood stained shirt of PW-3 Ashok Kumar was also taken into possession vide memo Ext. PW-1/A. The police recorded the statements of the witnesses and after completing the investigation, challan was presented in the court for the trial of the respondent. Finding a prima facie case against the respondent under the sections aforesaid, he was accordingly charge sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. His defence was denial simplicitor. No evidence in defence was led by the respondent. At the end of the trial, the respondent was acquitted by the learned trial - 4 - court on the ground that the prosecution has examined only the interested witnesses and no independent witness, who happened to be present on the spot, were associated by the police and further that as per opinion of PW-6 Dr. Balprit Kaur, the injury in question could be caused due to fall and PW-9 Dr. R.P. Chauhan specifically stated that if the injured was hit by the stone Ext. P-2, it should have contained blood stains which were not found there. On re-appraising the evidence on record, it transpires that PW-1 Sh. Amar Jeet is the relative, PW-2 Sonnu is the friend PW- 3 complainant is the father and PW-5 is the cousin of the injured. It has come in the evidence of all the prosecution witnesses that on the spot, there were around 15/20 persons present of the same vicinity. It is a settled proposition of law that evidence of the prosecution cannot be thrown out on this score alone that the witnesses of the prosecution examined in the court were either relatives or the friends of the injured. But it is incumbent upon the court to examine and scrutinize the evidence led by the prosecution closely and cautiously and then to decide whether it is inspiring confidence or not. - 5 - In the instant case, as stated above, the complainant along with his family and the respondent were present to take the water from the public tap. PW-2 Sonnu admitted in his cross-examination that the complainant had taken about 5/6 buckets of water from the public tap and at that time 2/3 persons were present there. According to PW-4 injured, his father Ashok Kumar at the relevant time, was on his left side and his mother was standing on the right side and many persons from the Mohalla had also gathered there. He further stated that respondent, at that time was engaged with the talks with his father. PW-5 Manoj Kumar has stated that the complainant and the respondent both were engaged in the heated arguments and respondent was not allowing the complainant to fill water from the tap. It appears from the evidence discussed above that the complainant was not allowing the other persons to take the water and had engaged his entire family to take water from the public tap which appears to have caused annoyance to the respondent and this could be the apple of contention inter se the parties, more specifically when Majoj Kumar stated that respondent did not object him to fill up the water from the tap then - 6 - what was the reason that the respondent was objecting to take the water by the complainant from the public tap. There is no cogent evidence on record to show that complainant was either restrained or given beatings to him or threatened him with dire consequences. Therefore, the offences under Sections 341, 323 and 506 of the Indian Penal Code stands not proved. In so far as Section 325 of the Indian Penal Code is concerned, the alleged grievous injury caused to the complainant is not proved having been caused by the respondent, beyond doubt for the reasons that when Dr. R.P. Chauhan examined the complainant, he did not say any where regarding the fracture of tooth, as alleged in the prosecution case. However, he referred the injured for the X-ray examination which was done by Dr. Balprit Kaur (PW-6). Surprisingly, the X-ray is not on record. There is only the report of the doctor Ext. PW-6/A which says about the fracture of upper incisor tooth of the left side. But there is nothing to substantiate this opinion more specifically and particularly when the injured was not got identified during the proceedings before the trial court from the doctor. In absence of the above material, the court - 7 - cannot conclude that the injury in question was grievous in nature and having been caused by the respondent in the manner it is alleged more particularly when the said injury is alleged to have been caused with the stone, (Ext. P-2), which is of 1 kg. in weight. PW-9 Dr. R.P. Chauhan had testified on oath that had this injury been caused by the stone aforesaid, it should have the blood stains which were not found there. Therefore, a reasonable doubt has arisen in the prosecution story as spoken by the witnesses and the statement of the witnesses examined before the trial court are not confidence inspiring, as such on the strength of the aforesaid evidence the learned trial court rightly acquitted the respondent by giving him the benefit of doubt. As such the appeal merits dismissal and is accordingly dismissed. The matter stands disposed of. The respondent is hereby discharged of the bail bonds entered upon by him at any stage during the proceedings of this case. Send down the records. June,5, 2009 (Surinder Singh),J. (cm)