IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.90/2001. Date of Decision :14th March, 2008. State of H.P. …Appellant. Versus: Austam Chand. ..Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Vivek Thakur, Addl. Advocate General. . with Ms.Subh Mahajan, Deputy Advocate General. For Respondent. Mr.Vinay Thakur, Advocate. Sanjay Karol, J(Oral). The present appeal arises out of the judgment dated 13th September, 2000 passed by Judicial Magistrate, Ist Class, Court No.2, Dehra, District Kangra in Criminal Case No. RBT 21-II/99/95 titled as State of Himachal Pradesh Vs. Austam Chand, acquitting the accused of the charged offence under Section 325 of the Indian Penal Code. As per the case of the prosecution, on 15th August, 1994 at about 6.15 P.M. the complainant Gulabi Devi (PW-1) was cutting grass in her field when she noticed that accused Austam Chand was removing the boundary fence, to which she protested and the accused turned violent and hit her with the `Danda’ on her head and also pelted stones on her due to 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 which she received injury on her body. PW-1 fell unconscious on the spot. After that the accused ran away from the spot and the whole incident was witnessed by Nikka Ram (PW-2) and Udham Singh (PW-3). Nikka Ram (PW- 2) immediately came at the spot and took the complainant to the Police Post, Ranital where the matter was reported vide rapat Roznamcha No.17 and F.I.R.No. 72/94 (Ext.PW-7/B) was registered with Police Station, Haripur under Sections 325 and 323 I.P.C. The matter was investigated and the statements of the witnesses were recorded. `Danda’ (Ext.P-1) the weapon of offence with which the accused allegedly hit PW-1 was taken into possession vide seizure memo (Ext.PW-1/A) in the presence of Puran Chand (PW-4). The clothes belonging to the complainant were also taken into possession. The injured was got medically examined through Dr. Rama Sharma (PW-6) and her M.L.C. report (Ext.PW-6/A) was also taken by the Police. With the completion of the investigation, the challan was presented in the Court for trial and the charges against the accused under Sections 325 and 323 of the Indian Penal Code were framed. The accused pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as seven witnesses and the statement of the accused under Section 313 Cr.P.C. was also recorded. The defence of the accused is to the effect that he has been falsely implicated in the case due to prior animosity and land dispute with the complainant and witness Puran Chand (PW-4). In defence he has produced certified copies of the application and the demarcation report Ext. D-1 to Ext.D-6 which would establish the prior dispute between the parties. Considering the material on record, the court below acquitted the accused for the charged offence on the ground that the independent 3 witnesses had not only turned hostile but there were major contradictions in the statements and the prosecution had failed to prove its case beyond reasonable doubt. I have heard learned counsel for the parties and gone through the record. In order to prove its case the prosecution examined seven witnesses. Gulabi Devi (PW-1) is the wife of Sh. Nikka Ram (PW-2) . Udham Singh (PW-3) and Puran Chand (PW-4) are the neighbours of PW-2. Khushi Ram (PW-5) is a witness to the recovery memo (Ext.PW-1/A). This witness has not supported the case of the prosecution and as such was declared hostile. In spite of cross-examination by the Public Prosecutor, there is nothing in his statement which would prove the prosecution story. Dr. Rama Sharma (PW-6) has medically examined the complainant and in terms of report Ext.PW-6/A the complainant has undoubtedly received the injuries on her body. The doctor found that injury No.6 on her body was grievous and injuries No. 1 to 5 were simple in nature. This witness, however, has stated that injury No.6 which is grievous in nature could have been caused by fall. She has further admitted that the X-ray film report does not bear the name of the patient. Therefore the prosecution has not been able to prove the grevious injury. Be that as it may be it is clear that the complainant had in fact received injuries. However, whether these injuries had been inflicted by the accused in the alleged incident needs to be ascertained. Kishan Chand (PW-7) is the Investigating Officer who has carried out the investigation. 4 In order to ascertain as to whether the accused is guilty of the charged offence, the statements of PW-1, PW-2, PW-3 and PW-4 needs to be examined. PW-4 has admitted that there is prior animosity between him and the accused. PW-4 has also admitted that there is a dispute which is pending between the accused due to which he is inimical towards him. He has also admitted that in the very same case the complainant was a witness who had testified in his favour. Therefore, the statement of this interested witness alone, in my view, cannot be relied upon to convict the accused of the charged offence. A careful scrutiny of the testimony of PW-2 and PW-3 would show that they have not witnessed the occurrence of the incident. PW-2 and PW-3 in any event has been declared hostile and both of them have stated that they reached at the place of occurrence only after the accused had fled away from the spot. In any event the statement of PW-2 can also not be relied upon for the reason that he does not appear to be coming out with true and complete version with regard to the actual incident and also the dispute between the parties. In the background that there is prior animosity between the parties, the statement of Gulabi Devi (PW-1) needs to be looked into with circumspection. More so as the accused has taken a defence that he has been falsely implicated in the case for having given a statement against PW-4 and also due to animosity between the parties. He has placed on record a copy of the revenue paper which would show that there is dispute between the complainant and the accused. There is material on record which would prove that the statement of PW-1 is contradictory, un-reliable and un-trustworthy. According to PW-1 the incident had been witnessed by PW-2 and PW-3 whereas this fact has been contradicted by PW-2 and PW-3 themselves. In this view of the matter, it cannot be said that the prosecution has been able to 5 prove its case beyond reasonable doubt. The evidence led by the complainant raises doubt of suspicion with regard to the actual occurrence of the incident and it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. The injury could have been caused by fall. The statement of the witnesses appears to be un-trustworthy and no reliance can be placed on the same. The accused had the advantage of having been acquitted by the court below and as per the ratio of law laid down by the apex Court in Barati Vs. State of U.P., (1974) 4 SCC 258 and Ramji Surja Padvi and another Vs. State of Maharashtra, (1983) 3 SCC 629, no case for interference has been made out by the State. The material has been appreciated by the court below in its entirety and there is no perversity in the same. In the facts and circumstances of the case, I see no reason to interfere with the judgment of the trial Court. The appeal is accordingly dismissed. Bail bonds are discharged. On the request of the Court, Shri Vinay Thakur, Advocate assisted the court. The assistance rendered by the counsel is appreciated. (Sanjay Karol), Judge. March 14, 2008(R) 6