IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 120 of 2001 Date of Decision : 18.3.2008 State of H.P. …Appellant. Versus: Kesar Chand & another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondents : Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 29.9.2000 passed by the Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P. in Criminal Case No. 78-II/91, titled as State v. Kesar Chand and another acquitting the accused of the charged offence. As per the case of the prosecution, complainant Ram Rattan had constructed the boundary wall abutting the land of the accused No.1, who had raised a ‘Palli’ (temporary structure) by fixing two pillars besides the boundary wall of the complainant. The complainant had been repeatedly requesting the said accused to remove the same. On 2.2.1991, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the complainant again requested the accused persons to remove the same but, however, accused No.1 gave a blow with a brick to the complainant as a result of which he sustained an injury above his left eye. Shri Desh Raj accused No.2, servant of accused No.1 also gave blows to Shri Ganesh Dutt son of the complainant. The complainant visited Police Station, Dehra on the same day and lodged a report and was got medically examined at Dehra and after receipt of the MLC, FIR No. 4/91 dated 3.2.1991 (Ext.PW-3/B) was registered with Police Station, Dehra under Sections 323 & 324 IPC. The case was investigated by Shri Narain Singh, SHO, Dehra. With the completion of the investigation, the challan was presented in the court for trial. The accused persons were charged for the offences under Sections 325 read with Section 34 IPC and 323 IPC, to which they did not plead guilty and claimed trial. In order to prove its case, the prosecution examined six witnesses and the statements of the accused persons under Section 313 Cr.P.C. were also recorded. In defence, it is the case of the accused that they have been falsely implicated due to animosity between the parties. Considering the material on record, the court below came to the conclusion that no case had been made out against the accused persons as no independent witness was examined by the prosecution and the presence of the interested witnesses at the time and place of the occurrence was doubtful. The Court also found the version of the prosecution witnesses to be contrary to the record which in any event did not inspire confidence so as to prove the guilt of the accused beyond reasonable doubt. 3 I have heard the learned counsel for the parties and perused the record. At the threshold, it is pertinent to point out that inspite of various opportunities granted to the prosecution, the cited witnesses were not examined in totality. The Investigating Officer who investigated the matter, prepared the site plan and recorded the statements was not examined. The Radiologist, who had opined that the complainant had received grievous injuries, was neither examined nor his report was proved. Complainant Ram Rattan expired during the trial and even his statement could not be recorded in the Court. Shri Harbans Singh (PW-6) recorded the statements of the witnesses including that of Shri Bharat Bhushan, an independent witness, who in any case, has not been examined by the prosecution during trial. Shri Mela Ram (PW-3) has proved the recording of the report lodged by the complainant Ext.PW-3/A and also FIR Ext.PW-3/B, which was registered by Shri Narain Singh, SHO. The complaint was lodged on 2.2.1991 at about 2.15 p.m. and the FIR was registered on 3.2.1991. As per the version of Dr. (Mrs.) Suman Sood (PW-1), she medically examined Shri Ram Rattan on 3.2.1991 at about 12 noon. She has proved the MLC of the complainant Ext.PW-1/A which would show that the complainant received five injuries including a fracture of Lt. Zygoma. The injuries could have been suffered 36 hours prior to examination. According to this witness, the injuries could have been sustained by falling of the bricks. She is categorical in her deposition that all the five injuries could not have been sustained by a simple blow of brick. 4 Thus, from her testimony, it is clear that the injuries sustained by the complainant could not have been inflicted by a single blow of brick as is alleged to have been given by accused No.1. It is the case of the prosecution that only a single blow of brick was given by accused No.1. The prosecution has not been able to explain the injuries sustained by the complainant on his body. The possibility of the complainant falling on the bricks or the bricks falling on him and the complainant suffering injuries due to the same cannot be ruled out. Importantly, the alleged incident took place on 2.2.1991 at about 11.00 a.m. The complainant had lodged the report with the Police Station at Dehra on the same day at about 2.15 p.m. Why the complainant was not got medically examined on the same day has not been explained by the prosecution. The hospital is in close vicinity of the police station. Therefore, the complainant suffering an injury in another incident cannot be ruled out. Even the Radiologist has not been examined and the grievous injury cannot be said to be proved. The testimonies of the remaining three witnesses, namely, Ganesh Dutt, son of the complainant (PW-2), Vidya Parkash (PW-4) and Karam Chand (PW-5) need to be examined. PW-4 & PW-5 are the tenants of PW-2. Both have deposed that they did not see the occurrence of the incident. They are not the spot witnesses. As per the version of PW-4, no quarrel took place in his presence and PW-5 has stated that he does not know as to how the complainant Ram Rattan received injuries on his body. As per his version, he reached the place of occurrence only after five minutes of the incident. Thus, these witnesses have not witnessed the occurrence of the incident 5 and they do not prove the guilt of the accused in the commission of the crime. Further, the alleged dispute was with regard to the raising of pillars for the purpose of setting up a Palli by accused No.1. PW-4 has in fact admitted that the same was raised with his permission. It is the case of the prosecution that PW-4 and complainant were co-owners of the land. This casts a doubt about the prosecution story. Perusal of the record as also the statement of PW-2 would show that his testimony cannot be relied upon to convict the accused of the charged offence. During trial, the Court has seen his demeanor and has recorded the fact that the witness is avoiding the questions and is agitated. According to PW-2, in the alleged incident he also received injuries on his body. According to him, he took the complainant to Dehra for registration of the complaint and was present at the time when the complainant was medically examined yet he was not medically examined. Except for the self serving statement of witness, there is nothing on record to show any injury, either inflicted by accused No.2 or sustained by him in the alleged incident. In the cross-examination, PW-2 has admitted that 5-6 cases were pending in which his father was a party which were being pursued by him. No doubt, this witness has stated that PW-1 gave a blow with a brick to the complainant but in the absence of any corroboration, the guilt of the accused beyond reasonable doubt cannot be proved. In any case he does not appear to be a truthful witness and his version is unbelievable for the reason that as per the medical evidence on record, the complainant received five injuries which according to Dr. (Mrs.) Suman Sood (PW-1) was not possible with a simple blow of brick. There is no evidence on record to show that accused No.2 had inflicted 6 blows with lathi. Neither there is any medical evidence nor any recovery of the alleged weapon of offence. Inspite of various opportunities, the prosecution has not examined all the cited witnesses. It has come on record through the statement of PW-2 that accused No.1 has been using the place in question since 1960. The alleged incident is stated to have taken place during broad day light and at a place which is just about 50-60 mtrs. from the main Bus Stand, Chintpurni. It has come on record that there were about 500 to 600 people and there are houses of other persons also in close vicinity. Why no independent witness has been associated by the prosecution has not been explained. It has come on record that one Krishan Chand had witnessed the occurrence of the incident and even he was not examined by the prosecution during trial. In my view, the statement of the witness stands contradicted by the record and keeping in view the totality of the circumstances, the prosecution has not been able to prove its case beyond reasonable doubt. . The accused have had the advantage of having been acquitted by the court below, which has considered the material in its entirety. I see no perversity in the same. The appeal is accordingly dismissed. The bail bonds are discharged. March 18, 2008 (Sanjay Karol), (rana). Judge.