IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 609 of 2003 Reserved on: June 23, 2010 Date of Decision : July 5, 2010 State of H.P. …Appellant v. Ramesh Kumar …Respondent. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ram Murti Bisht, Dy. A.G. For the respondent: Mr. K. R. Thakur, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 25.12.1999, accused was put to trial. In terms of judgment dated 15.9.2003 passed by learned Addl. Chief Judicial Magistrate, Arki, Distt. Solan, H.P. in Crl. Case No.31/2 of 2000, titled as State of H.P. vs. Ramesh Kumar, the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 25.12.1999, at about 3.00 p.m., Sh. Hem Raj (PW-1) was dismantling the shuttering of his house at village Kashlog. Accused Ramesh Kumar started stacking stones in the lane adjoining to the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 cowshed belonging to PW-1 which was objected to by him and his mother Smt. Shakuntla Devi (PW-2). This would have narrowed the passage of the lane for this reason an altercation took place between them and the accused pushed the complainant (PW-1) and gave beatings to him. Complainant suffered injuries on his left foot, left knee and little finger of his left hand. PW-1 lodged a report (Ext.PW-5/A) with the police at Police Station, Darlaghat and F.I.R. dated 18.1.2000 (Ext.PW- 1/A) under Section 325 IPC was registered. Complainant was got medically examined through Dr. Sanjay Mukherjee (PW-6) at Primary Health Centre, Darlaghat who upon preliminary investigation issued MLC (Ext.PW-6/A) and referred the matter to the District Hospital where he was examined by Dr. B. K. Bhardwaj and his X-ray was got done. 3. With the completion of the investigation the challan was presented in the Court for trial and the accused was charged for having committed an offence punishable under Sections 323 & 325 IPC to which he did not plead guilty and claimed trial. In order to prove its case the prosecution examined 7 witnesses. Statement of the accused under Section 313 Cr.PC was also recorded. 4. The Court below acquitted the accused of the charged offences. 5. That the accused sustained injuries is evident from the statement of Dr. Sanjay Mukherjee (PW-6) and the medical 3 records (Ext.PW-6/A to Ext.PW-6/D). However, in the absence of examination of Dr. B. K. Bhardwaj who carried out the X-Ray and gave his opinion, medical records (Ext.PW-6/B to Ext.PW- 6/D) cannot be looked into. The opinion given by the Doctor had to be proved in accordance with law. Even on (Ext.PW-6/A) there is cutting and the injury initially written was ‘simple’ which was cut and subsequently word ‘grievous’ was written. There is no justifiable explanation for the same rendering the prosecution version to be doubtful. 6. Further as per the version of Doctor (PW-6) who initially examined the complainant, the injuries could have been caused within 24 to 48 hours. Now the complainant was initially examined by PW-6 at about 4.00 p.m. on the date of incident itself. He was examined within one hour of the occurrence of the incident. This renders the prosecution version to be extremely doubtful. 7. Further it has come on record through the statement of PW-1 that there are about 60 houses in close vicinity of the place of occurrence of the incident and yet the Investigating Agency and the prosecution has chosen not to examine or produce in Court a single independent witness. The incident is alleged to have taken place in broad day light. It is not the case of the prosecution that none from the locality came forward in support of the complainant party. 4 8. Now, Smt. Shakuntla Devi (PW-2) admits that the land is joint and has not been partitioned. No doubt Sh. Kadshu (PW- 3) has supported the prosecution version but one cannot loose sight of the fact that he had been an employee of PW-1 for the last 15 years. Now this witness gives a different version with regard to the nature and number of injuries received by PW-1 on account of the alleged beatings given by the accused persons. According to him the complainant had suffered only one injury on his finger. Even with regard to the injuries suffered by PW-1, he has given a different version. In Court he has come out with the theory of having been hit by the accused with the stones which fact did not find mention in the initial complaint (Ext.PW- 5/A) made to the police. On this account the version of Sh. Raj Kumar (PW-4) is entirely different. According to him he did not see any injury being suffered by the complainant. He saw both the parties scuffle with each other. He also admits to have worked with PW-1. 9. Importantly both PW-3 & PW-4 were not present at the spot at the time when the altercation took place. Both rushed to the spot only after hearing cries. What was the genesis of the dispute has not been proved by placing on record clear, cogent and convincing material. 10. From the material on record it is clear that relations between the parties were strained. Witnesses PW-3 & PW-4 5 appear to have been planted subsequently by the Investigating Agency. Their presence at the spot is not corroborated by PW-1. 10. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. July 5, 2010. (Sanjay Karol) (rana) Judge.