IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 145 of 1996 Date of Decision : March 3, 2010 State of H.P. …Appellant. Versus: Harnam Singh …Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondent : Ms. Vidushi Sharma, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 28.7.1995 delivered by the learned Additional Sessions Judge(2), Kangra at Dharamshala, H. P., whereby he acquitted the accused of having committed offences punishable under Sections 307, 324 & 326 IPC. Briefly stated the facts of the case are that the complainant Satya Devi (PW-1) is married to PW-15 Suresh Kumar, brother of the accused. According to the prosecution 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 case, on 23.5.1994 some construction work was going on in the house of the complainant and her husband and the masons Romesh Chand and Dharam Chand along with the labourers Pritam Chand, Dharam Chand and Sudama Ram were working along with the husband of the complainant. In the meantime, the accused who is her brother-in-law came and tethered his horse in the verandah. The complainant brought water and then the accused pushed the horse towards her. The complainant then asked her brother-in-law as to why he had pushed the horse towards her. He thereafter started abusing her. The husband of the complainant intervened and asked the accused to tether his horse on the other side like he used to do earlier. Then the accused started fighting with his brother PW-15 Suresh Kumar. Thereafter, the complainant sat down on a ‘Charpai’ in the verandah of her house and the accused threatened to kill her and gave her two blows of the ‘darat’ on her neck. She raised her hands to save herself and the third blow struck on her hand. Seeing this, her husband rushed to rescue her and thereafter the accused went to his house along with the darat. On the basis of this complaint, F.I.R. Ext.P-14 was lodged. The police investigated the matter and after investigation, challan was filed. Since the offences were triable only by the Court of Sessions, the case was committed to the Sessions Court. The accused was charged with having committed 3 the offences aforesaid. After trial, he has been acquitted. Hence the present appeal. None of the independent witnesses have supported the prosecution story. The labourers and masons who were stated to be on the site did not support the prosecution version at all. According to them, only a verbal altercation took place but they never saw anybody giving any darat blow to any person. The defence of the accused also is that a fight did take place regarding the tethering of the horse. Thereafter, it is the complainant who came out and tried to give blow by the darat and when the accused tried to save himself the darat fell and caused injuries to the complainant. Even if this part of the defence version is not found to be correct, the prosecution has to stand on its own legs. It is for the prosecution to prove its case. As mentioned above, the independent witnesses did not support the prosecution. PW-5 is the brother of the complainant. His name does not find mention in the FIR. Though in the FIR, the complainant had given the names of all the labourers working in her house in detail, she had not given the name of her brother, though now it is stated that he was present at the spot. In case that was correct the complainant would have definitely disclosed his name also. This itself shows that he has been introduced at a later stage and was not really a witness to the incident. Even if his testimony is taken into consideration, it is apparent that though in the examination-in- 4 chief, he is giving a tutored parrot like version of the incident, in cross-examination he himself admits that he was not present at the spot when the alleged physical assault took place and only reached there on hearing the cries of his sister. He did not see the accused hitting his sister. Therefore, his testimony does not help the prosecution. To the similar effect is the statement of her husband. He in examination-in-chief has again supported the prosecution in toto. However, when cross-examined, he was forced to state that he had not seen the accused giving blows to his wife and arrived later. This statement is also contrary to the version of the complainant PW-1 who has stated that on seeing the accused hitting her, her husband came to rescue her. The testimony of the complainant does not inspire confidence and cannot be relied upon. It is apparent fact that a fight did take place but the version of this witness in Court is full of contradictions and different to the initial version given in her complaint. Whereas in the complaint she had stated that after the first quarrel took place with regard to the tethering of the horse, she sat down on the cot in the verandah, while appearing in the witness box she states that she went inside the house to look after her child. Thereafter, she came out to give water to her brother and sat on the cot, when the accused attacked her. According to her, a tuft of her hair was cut when the first blow was given by the accused. This fact does not find mention in the FIR. It is obvious that this improvement has been made with a 5 view to give a version which tallies with the medical evidence. PW-8 Dr. S. Kumbhkarni in his examination has stated that he found two injuries on the complainant, one on the neck and one on the arm. If she had been given three blows as originally alleged by her, there had to be a corresponding third injury also. To get out of this, a new version was put-up that the first blow caused no injury but only a tuft of the hair was cut. The manner in which the investigation has been carried out in this case leaves much to be desired. PW-8 Dr. S. Kumbhkarni has proved the medico legal certificate Ext.PA. He admits that originally in the medico legal certificate he had mentioned that the injury on the neck was simple. However, after one month on 17.6.1993 vide Ext.P22 the Sub Divisional Police Officer wrote a letter to the Chief Medical Officer that fresh opinion be obtained from the Doctor. Doctor Kumbhkarni admits that on the asking of the police, he scratched out the words “simple” and inserted the words “dangerous to life” instead. He also admits that the words “tuft of hair seen over the word” were added later at the asking of the police. Even if a Doctor has to change his opinion, he may do so, but this must not be done by scratching out or erasing any writings. He must give reasons for changing his opinion and records this and then give his opinion on a separate document. He cannot change his opinion by making alterations and erasures in the original document in such a manner which would give the impression that these erasures 6 and alterations were made when the document was originally written. This itself casts a grave doubt on the prosecution version. Not only has the nature of the injuries been changed but also the words “over back of neck, tuft of cut hair seen” added one month after the incident. If the tuft of the cut hair had been produced before the Doctor on the date when the complainant PW-1 was examined, he should have written the same on that day itself. The interpolation of the MLC casts a grave doubt on the veracity of the said document and in fact in our considered opinion shatters the prosecution case itself. In view of the fact that none of the independent witnesses have supported the prosecution case, the fact that PW-5 was introduced at a later stage and the husband himself states that he had not seen the actual incident, it is apparent that the accused could not be convicted. The trial Court rightly acquitted the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 3, 2010. (rana)