IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.98 of 2009 VINAY KUMAR TRIPATHI, S/o. Vishwanath Tripathi, r/o. Mohalla- Anandpuri, Vinay Kutir, Boring Canal Road, House No.7, P.S. S.K. Puri, Patna. Versus 1. THE STATE OF BIHAR, 2. Alok Trivedi, S/o. Sri Ram Tiwari, 3. Vijay Yadav, S/o. Pradeep Rai, 4. Surendra Chaudhary @ Surendra, S/o. Ram Naresh Chaudhary, Counsel for the Appellant: Mr. Kaushal Kishore Minz, Advocate. Counsel for the O.Ps.: Mrs. Anjum Perveen, Advocate. ----------- 09. 31.03.2010 This is an application for Special Leave to Appeal against the judgment of acquittal dated 11.06.2009 as passed by Judicial Magistrate, 1st Class, Patna in Complaint Case No. 169 of 1988/T.R. No. 297 of 2009, whereby the opposite parties were acquitted. The petitioner had earlier lodged an F.I.R. against the opposite party Nos. 2 to 4 for the offence under Sections 144, 323, 379 & 427 of the I.P.C. alleging that the O.Ps. along with one Lalan Yadav and 50 others being variously armed came to his house and gave abuses to him and his family members. It was also alleged that the complainant/petitioner and his servant were also assaulted and on hulla when neighbours assembled 2 they went away taking spade, chair etc. from the place. After filing of the F.I.R. under Kotwali P.S. Case No. 907 of 1986, police conducted investigation into the offence and finding the allegation false final form was submitted. The complainant had filed a protest petition and on the protest cognizance was taken and trial proceeded. During trial the complainant examined himself as P.W.2 and he also examined his nephew Sunil Chandra as P.W.1. Besides this three other witnesses namely, P.Ws.3, 4 & 5 were also examined but they all were of formal nature, who proved some documents and they did not say anything about the occurrence. Thus, the complainant and his nephew were the only witnesses produced on the point of occurrence. On consideration of the evidence the trial- court found that the charges were not proved, hence, he acquitted the accused/O.Ps. The learned trial- court considered that allegation of assault was there but any medical evidence was not brought on record. During hearing it was pointed out from the evidence 3 of P.W.1 para-12 that the persons, who were assaulted, had received injuries and there were injury marks on their body and that Haldi and Chuna was applied on their injury for treating it. But any injury report was not produced. It has to be remembered that the parties are neighbours and they are on acute litigating terms due to land dispute as transpired through some papers filed regarding litigation between the parties. It also appears that the complainant had firstly lodged F.I.R. but there is nothing on record to show that if any such injury was there it was shown to the police and if there had been any such injury police had got it examined by doctor during investigation. Besides this the P.W.1 says that there were injury marks but the complainant (P.W.2) himself does not say that he has received any such injury which was treated by Haldi and Chuna. In such view of the matters, due to non-production of any medical certificate the learned trial-court has rightly raise suspicion over the allegation of assault and injury. 4 The complainant’s specific case as laid in the complaint is that the accused/O.Ps. came to his house and they demolished his boundary wall. The learned trial-court has also disbelieved this portion of prosecution story. In this context the evidence of P.W.2 at para-8 was referred, in which he has categorically stated that on the complaint regarding demolition of the wall the police had inspected the place of occurrence and no sign of any breaking of the wall was found at that time. The P.W.5 who happens to be the Investigating Officer in police case earlier instituted by the complainant has stated in his evidence at para-2 that when he had inspected the P.O. only the base of the wall was there and there was no other portion of the wall. He also stated that regarding the breaking of the same wall Phul Kumari Tripathi had also earlier lodged a criminal case. Thus, according to this witness same case regarding the breaking of the wall had been lodged earlier and on the same facts subsequent allegation was made. Therefore, this witness (P.W.5) has stated that he had 5 submitted final form reporting the allegation false. The learned trial-court also considered that on the matter of taking away of the articles the complainant has stated but his nephew namely, P.W.1 did not state. During argument learned counsel for the petitioner pointed out that the P.W.1 stated at the end of his examination-in-chief that the accused/O.P. took away Belcha and Tokri from the P.O. but it was replied by the learned counsel for the O.Ps. that the complainant says about taking away of spade and chair, which fact is not being stated by the P.W.1 and thus there is serious contradiction over the articles taken away which creates a doubt over such allegation of taking away of articles. Besides this there is also one aspect of the case that only the complainant and his nephew, who are highly interested witnesses have been examined in this case. Learned counsel for the O.Ps. pointed out that the complainant at para-17 of his evidence stated that the occurrence had been witnessed by the neighbours namely, Ramayan Singh and Raj Mangal 6 Prasad, but these two witnesses have not been examined. Since they were the neighbours and they are said to have witnessed the occurrence they were important witness but the complainant does not explain why he did not examine them. Due to their non-examination an adverse interference has necessarily to be drawn in this case. In this regard, the learned counsel for the petitioner submitted that the complainant was an injured witness, therefore, he has to be believed. No doubt, an injured witness becomes important for the purpose of evidence but the evidence of any witness has to be considered and decided in its entirety considering all the aspects of the case. Simply because he is an injured witness he can not be believed and his evidence cannot be taken as a conclusive piece of material for the case. In this case the existence of the injury has been disbelieved and it has rightly been done by the trial-court due to non-production of the medical certificate and due to their being nocorroboration by any other witness in this regard. Thus, considering all the facts and 7 circumstances, I find that the learned trial-court has rightly acquitted the accused-O.Ps. I find no merit in this application. Hence, prayer for leave to appeal is dismissed at the stage of admission itself. Mkr. (C.M. Prasad, J.)