HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.171 of 1997 Decided on: July 16, 2010 State of H.P. …Appellant. VERSUS Guddu ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.AG. For the respondent: Mr. Rakesh Dhaulta, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 28.10.1996 passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No.20-S/7 of 1992 thereby acquitting both the respondents / accused person for offence under Sections 224,332,333, 353 of the Indian Penal Code. 2. As per the prosecution case, Tara Chand, PW-1 (complainant)/constable on 28.8.1990 at 7.45 PM along with Bahadur Singh constable PW-2, were doing patrolling duty, observed that one Guddu, under the influence of liquor was quarreling with one Kallu in Whether the reporters of the local papers maybe allowed to see the judgment? …2… the hotel of Thannu Ram. PW-1 and PW-2 apprehended accused person Guddu and Kallu and brought them to the police station and registered case vide Ex PW-9/B. PW-8 Jagdish Chand ASI Incharge of Police Station Kotkhai had deputed PW-1 Tara Chand, complainant, for medical examination of the accused person Guddu. PW-2 Bahadur Singh, constable was deputed for medical examination of the accused person Kallu. When PW-1 and PW-2 were taking the accused for medical examination, all of a sudden, accused Guddu picked up one stone and hit PW-1 Tara Chand, constable on his mouth, thereby causing fracture of left upper incisor tooth and left lateral incisor tooth and managed to escape. PW-1 cried for help. PW-3 Kulbhushan constable and Ghanshyam constable of Police Station, Kotkhai were there in the nearby area, they came and overpowered Guddu. PW-1 had instituted FIR Ex PW- 1/A. After investigation, accused Guddu was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as nine witnesses, whereas, the respondent/ accused, in his statement under Section 313 Cr.P.C., has denied the prosecution case. 4. PW-6 Dr. J.G.Vohra examined PW-1 Tara Chand and noted the following injuries: (i) There was one lacerated wound on the left maxillary region ½ “ x ¼ “ x ¼ “ with irregular margins covered with clotted blood which bled on removal of clot of blood. The direction of the wound was from medial to …3… lateral side and from below upwards. Base of the wound was underlying muscles. (ii) There was one lacerated wound ¼ “ x ¼ “ x ¼ “ irregular margins covered with clotted blood which bled on removal of clot of blood. The direction of the wound was from medical to lateral side. Wound No.2 was ¼ “ above the wound No.1. (iii) There was one lacerated wound ¾ “ x ½ “ x ¼ “ with irregular margins on the left side of mandibular region with direction of wound from above downward and from medial to lateral side. Base of wound was under- lying mussel. Wound was covered with clotted blood and on removal of clot the wound bled. (iv) There was one lacerated wound on the left side of upper lip ½ “ x ¼” x ¼ “ with irregular margins covered with the clotted blood and wound bled on removal of clot of blood. The direction of the wound was from outer side of lip to the inner side. (v) There was one lacerated wound ¼ “ x ¼ “ x ¼ “ on left side of lower lip with irregular margins covered with clotted blood which bleed on removal of clot of blood. Base of wound was muscle. (vi) Shaky left upper first tooth and alleged to have got second upper left broken tooth. (vii) History of epistaxis (bleeding from nose) from both the nostrils. Pulse was 80 per minutes and blood pressure was 130/86 mm. of mercury. Patient complained of unconsciousness and dizziness for some time. (viii) There was no smell of alcohol coming in the breath. Nature of Injury Injury No.1 to 5 were simple and for the assessment of nature of injury No.6 the patient was referred to Dental Surgeon for expert opinion. Duration between …4… injuries and examination was within six hours and the weapon used was blunt. Patient was admitted in CHC Kotkhai for assessment of injury No.7.” PW-6 J.G. Vohra had fond the following injuries on the peson of PW-3 Kulbhushan constable:- (i) “One lacerated wound on the second toe of left foot ½ /” x ¼ “ with irregular margins covered with clotted blood which bled on removal of clot of blood. Under- lying portion was the bone. Direction of the wound was from proximle to distel end and from medial to lateral side. Wound was on the dorsum of the toe. (ii) One lacerated wound on the dorsum of third toe ½ “ x ¼ “ x ¼ “ with irregular margins covered with clotted blood. The wound bled on removal of clot of blood. Under-lying portion was the wound. The direction of the wound was proximal to distal end. Wound was on the dorsum of the left foot. (iii) There was no smell of alcohol coming from the breath. Injury No. 1 to 3 were simple and caused within six hours of physical examination. The weapon was used blunt. After examination I issued MLC Ex PW-6/B which is in my hand and bears my signatures.” 5. Dr. J.G. Vohra had medically examined the accused person Guud on 20.8.1990 at 10.40 PM and noted the following injuries: “(i) There was smell of alcohol coming from the breath. (ii)Orientation in time place and person were partially disturbed. (iii)Coordination of final movement was disturbed. (iv) Concentration was not fully intact. …5… (v) Gait person could not walk since he complained of pain in both the legs. (vi) Pulse was 78 per minute and blood pressure was 110/70 mm. of mercury. (vii) There was bruise ½ “ x ½ “ on right maxillary region with irregular margins which was pink colour. (viii) There was one bruise 1” x ½ “ on left maxillary region with irregular margins which was pink colour (ix) There was one haematome around right eye on lower lid with ill defined edges (x) Conjunctive congested. Pupile were rounded, equal sized and reacting to light. Injury No. (vii) to (ix) were simple and were caused within 24 hours of examination and caused with blunt weapon. 6. Medical officer has reported that accused Guddu has made a complaint that he was feeling pain in both the legs. However, lower portion of his body was not medically examined and apart form the injuries to legs, accused had three other injuries on his person. 7. PW-3 Kulbhushan, constable had not stated that the accused person hit him at any stage and he had stated that on 20.8.1990, while accompanying constable Ghan Shyam, were walking in Kotkhai Bazar. At that time, PW-1 and PW-2 were going with two accused who were under the influence of liquor. Further …6… stated that he heard some noise and saw Tara Chand constable lying on the road with injury. However, PW-3 apprehended accused Guddu. However, no independent witness was examined by the prosecution with respect to the place where PW-1 was assaulted at about 8.45 PM on 20.8.1990 near the shop of one Babu Ram, but Babu Ram was also not examined. In the month of August, it cannot be said that in Kotkhai bazar nobody was available at about 8.45 PM. Kallu was also not examined by the prosecution, who was said to have been taken by PW-2 for medical examination. PW-1 Tara Chand, constable has himself stated that had fallen down as a result of the impact of the stone against his mouth. However, PW-1 had not stated that he had noticed accused person picking up a stone with the help of moon light. Medical Officer had admitted that PW-1 could have sustained injury on his mouth as a result of fall and medical report of PW-6 reveal that there was as many as four injuries on the external side of the mouth of PW-1 ad PW-1 had himself stated that he sustained injuries by falling. As such, the accused cannot have inflicted the injury to PW-1. Injuries found on the person of the accused could not be ignored as it is nobody’s case that Guddu had hit him and injured him. It is nobody’s case that PW-1 and PW-2 have beaten Guddu. PW-1 too has not stated any where that by hit of stone by accused Guddu, his tooth were broken and nothing has been mentioned to that effect in the FIR and nothing has been emanated from the testimony of PW-3 that how he sustained injuries and one material deficiency in the prosecution case is that no blood …7… and urine sample was taken and tested to indicate that the accused was under the influence of liquor. 8. Keeping in view of the apparent contradictions and improbabilities in the present case, prosecution case is not free from doubt. 9. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment and the Criminal Appeal, being devoid of any merit, is accordingly dismissed. 10. Bail bonds, furnished by the respondent, are hereby discharged. ( R.B.Misra ), J. July 16, 2010. ( V.K.Sharma ), J. (sl) …8…