IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 286 of 2001 Date of Decision : 28.2.2008 State of H.P. …Appellant. Versus: Mahesh Auhri …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent : Ms. Sunita Sharma, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 26.12.2000 passed by the Judicial Magistrate 1st Class, Court No.4, Shimla in Cr. Case No. 25/2 of 2000/99, acquitting the accused of the charged offence. As per the case of the prosecution on 5.2.1999 at about 11.30 A.M. the complainant had visited the shop of the accused at Boileauganj, Shimla to purchase some stationery. For the goods purchased by the complainant, the accused demanded a sum of Rs.130/- in excess of the fixed price. On this an altercation took place between them. The accused assaulted the complainant and 1 Whether reporters of Local Papers may be allowed to see the judgment? gave a blow on his ear, resulting into injury on the body of the complainant. The accused also called 4 – 5 shopkeepers from nearby and threatened the complainant that if he was even seen again in the area, he would be torn into pieces. The complainant Sandeep Kumar immediately got a Report (Ext.PW-6/A) lodged with the police and on the basis of which an F.I.R.(Ext.PW-8/A) was registered with the Police Station, Boileauganj under Section 325 I.P.C. The complainant was got medically examined through Dr.Madhuri (PW-4) and M.L.C. (Ext.PW-4/A) and Audiogram (Ext.PW-5/A) was obtained during investigation. After the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for an offence under Section 325 I.P.C. The accused did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 11 witnesses and the statement of accused under Section 313 Cr.P.C. was also recorded, but however, no evidence was led on his behalf. Considering the material on record, the learned court below acquitted the accused of the charged offence for the reason that the prosecution story and the witnesses did not inspire confidence and the prosecution had failed to prove its case beyond reasonable doubt. The court found the statement of the witnesses contradictory and that no independent witness had been associated during the investigation and trial. I have heard the learned counsel for the parties and perused the record. Dr. Madhuri (PW-4), Dr. Brij Bhushan (PW-5) and Dr.Rajesh Kumar (PW-10) have been medically examined the complainant and given their Medical Report (Ext.PW-4/A) and (Ext.PW-5/A). There is no external injury found on the body of the complainant. From their testimonies, it is clear that the complainant had suffered injury on his body. However, that fact alone would not be sufficient to prove the guilt of the accused, particularly when these witnesses have categorically stated that the possibility of the complainant suffering an injury by falling on hard surface cannot be ruled out. They could not state with certainity as to when the complainant had been suffering hearing loss. Constable Chander Mohan (PW-6), Retd. Insp. Balak Ram (PW- 7), ASI Bansi Dhar (PW-8), ASI Mohinder Singh (PW-9) and Head Constable Ajit Singh (PW-11) are the police officials, who have carried out the investigation and presented the challan for trial. A.S.I. Mohinder Singh (PW-9) has categorically stated that he does not remember whether he had recorded the statement of Sh.Rajat Kundi (PW-2). He also does not remember where PW-2 resides. None of these police officials have witnessed the occurrence of the incident. This leads us with the statements of Sandeep Kumar, PW-1, Rajat Kundi, PW-2 and Bhupinder Singh, PW-3. PW-3 is the friend of the complainant Sandeep Kumar (PW-1) and PW-2 is not the resident of the area in question. The presence of PW-2 and PW-3 on the spot at the time of alleged occurrence of incident is not referred to at all in the F.I.R. The trial Court has found the presence of the said two witnesses on the spot at the time of occurrence as highly improbable. I see no reason to differ with the view taken by the court below. From the statement of PW-2, it is clear that he has contradicted himself with regard to the injury which was received by him. He has not categorically stated on which ear the accused had given him a blow, which resulted into the injury on his body. He does not named the spot witnesses. In fact, in the F.I.R., it is his version that the accused had asked for an excess sum of Rs.130/- whereas in his statement in Court this figure has changed to Rs.400/-. In his cross-examination, however, he has corrected himself by referring to a sum of Rs.130/-. This witness cannot be said to be reliable and trustworthy. His testimony cannot be relied upon to prove the guilt of the accused beyond reasonable doubt. It is the case of the prosecution and the version of the complainant as recorded in the F.I.R. the accused had called 4 – 5 shopkeepers and had threatened him of dire consequences. Importantly, the police has not taken any action against the said pesons nor have they been associated during investigation and trial. Importantly, no independent witnesses have been associated by the police and examined by the prosecution during trial. The accused has had the advantage of having been acquitted by the court below. The trial court has examined the entire material in its entirety and I find no perversity in the same. I find that the statements of witnesses cannot be relied upon to prove the guilt of the accused beyond reasonable doubt. For the aforesaid reasons, the present appeal is dismissed. The bail bonds furnished by the accused are discharged. (Sanjay Karol) J. February 28, 2008 (GR).