Shamim Ahmed,J

1. List of cases has been revised and the case is being taken up in the revised call for hearing.

2. Heard learned counsel for the parties.

3. The present appeal under Section 374 (2) of the Criminal Procedure Code has been preferred by the appellants Moti Lal @ Moti , Phool Chandra, Lal Bahdur and Amroo against the judgment and order dated 05- 03-2014 passed by Learned Additional District & Session Judge, Court No.- 7th, Pratapgarh, in S.T. No. 504 of 2011, State Vs Moti Lal @ Moti; arising out of Case Crime No. 184-A of 2008, Police Station Patti District Pratapgarh whereby the appellants were convicted and sentenced under Section 323 read with section 34 I.P.C. for six months simple imprisonment with fine of Rs. 500/- and further under section 325 read with section 34 I.P.C. for two years simple imprisonment with fine of Rs. 2,000/- with default stipulations.

4. That Brief facts of the case are that on 12-08-2008 some alteraction took place between the complainant and accused Moti Lal @ Moti , Phool Chandra, Lal Bahdur and Amroo and accused persons had even beaten complainant with legs and fists as a result of which complainant had sustained injuries.

5. On this allegation, PW-1 Raghunath Dobhi, had made an oral complaint at P.S. - Patti, District Pratapgarh on the basis of which an N.C.R. was lodged at Police station Patti District Pratapgargh on 12-08- 2008 at 17:45 PM against appellants under sections 323/504/506 I.P.C.

6. Thereafter the complainant was medically examined at C.H.C. Patti, Pratapgarh on 12-08-2008 at 09:50 PM and following injuries were present on the body of injured as per the injury report:-

a) 1 cm x .2 cm long abrasion on back of left neck. Dark in colour.

b) Multiple abrasion on right side back, dark in colour.

c) 1 cm x.2 cm skin deep incised wound on ventral aspect of left wrist joint, 5 cm above left wrist joint. Red in colour. Margins are demarcated.

And as per the opinion of Doctor injury no. 1 and 2 were simple in nature, caused by blunt and hard object and duration of the injuries was about ½ day old. And injury no. 3 was simple in nature and was caused by hard and sharp object and duration was about ½ day old.

7. Similarly son of complainant Pappu Kanojiya was also medically examined at C.H.C. Patti, Pratapgarh on 12-08-2008 at 07:00 PM and following injuries were present on the body of injured as per the injury report:-

a) Abraded Contusion of 2 cm x 2 cm on dorsal of proximal phalanx of right middle finger. Undoubtedly severe bony hardness present.

b) Abraded contusion of 1 cm x 1 cm on dorsal o right index finger at level of 1 st I.P. joint.

c) Contusion of 6 cm x 2 cm on dorsal of right hand 4.5 cm distal to right ulna on stymied process.

d) c/o pain in chest and back of chest.

And as per the opinion of doctor except injury no. 1 all other injuries were about half day old and caused by blunt object and injury number 1 was simple , K.U.O. and X-ray of right hand with middle finger A.P. and L.A. was advised.

8. Thereafter an application under section 155(2) Cr.P.C. was moved by the complainant Raghunath Dhobi before Additional Chief Judicial Magistrate, Pratapgarh on 18-08-2008 in which he retreated the version of prosecution annexing the injury reports of him and his injured son with the prayer to direct the police officers to investigate the non cognizable report registered against the accused / appellants. And the said application was allowed by Additional Chief Judicial Magistrate, Pratapgarh and the police officers were directed to investigate the case as per law.

9. This case was entrusted to investigating officer who investigated this case and during investigation, he visited the place of occurrence, prepared the site plan, recorded the statement of injured persons, even recorded the statements of witnesses and after completing the investigation, investigating officer had submitted the charge sheet against the appellants on 28-09-2008 under section 323/325/504/506/324 I.P.C.

10. That further after submission of charge-sheet before the Court below the said case was committed from the Court of Chief Judicial Magistrate Pratapgarh to the Court of Session on 03-08-2011 wherein it was registered as S.T. No. 504 of 2011. After committal, the trial court framed charges against the accused-appellants u/s 323/34, 325/34, 504 & 506 I.P.C. The accused-appellants denied the charges levelled against them and claimed to be tried.

11. That in order to substantiate its case, prosecution examined following witnesses:-

I. PW-1 Raghunath (complainant) – who had proved the the application moved by him under section 155(2) Cr.P.C. (kagaz 9A/ 1, 9A/3 , Exibit K-1)

II. PW-2- Pappu @ Nagesh – injured witness.

III. PW-3 Dr R.S. Verma- who proved the X-ray report of left hand of injured Pappu @ Nagesh and also the X-ray plate.

IV. PW-4 Dr. Sanjay Kumar Sharma who proved the injury report (Exhibit -3) of injured Pappu @ Nagesh.

V. PW-5 Dr. A. C. Dubey who proved the injury report (Exhibit -4) of injured Raghunath Dhobi.

VI. PW-6 Head Constable 52 C.P. Mohd. Shamshad who proved the N.C.R. and also the hand writing and signature of H.C. Ramesh Chandra in G.D. (Exhibit K-5) and also proved the cross case registered as State Vs Pappu @ Nagesh.

VI. PW-6 Head Constable 52 C.P. Mohd. Shamshad who proved the N.C.R. and also the hand writing and signature of H.C. Ramesh Chandra in G.D. (Exhibit K-5) and also proved the cross case registered as State Vs Pappu @ Nagesh.

12. That after closing of the evidence, statement of accused/ appellants under Section 313 Cr.P.C. were recorded by the trial court explaining the entire evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted. Appellants further stated that he and his son were also injured in the alleged occurrence and there medical examination was conducted at Allahabad and even the skull bone of Phool Chand was fractured and due to this reason cross case was registered against the appellants. And Appellants in their defence evidence had even submitted the first information report of crime no. 184 of 2008 u/s 323/504/506/308 I.P.C. (State Vs Pappu Dhobi ) and also the charge sheet, site plan and the injury reports of injured Moti Lal.

13. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, found the accused / appellants guilty and sentenced the appellants under section 323 read with section 34 I.P.C. for six months simple imprisonment with fine of Rs. 500/- and further under section 325 read with section 34 I.P.C. for two years simple imprisonment with fine of Rs. 2,000/- with default stipulations.

14. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellants have preferred the present appeal.

15. Learned counsel for the appellants have submitted that the accused appellants have been convicted and sentenced under sections 323/34 and 325/34 I.P.C. without there being any concrete evidence against them and the findings of conviction recorded by the Trial Court are based on surmises and conjectures.

16. Learned counsel for the appellants submitted that complainant PW1 Raghunath had stated in the first information report that accused Phool Chand had assaulted him with legs and fists but in his application moved under section 155(2) Cr.P.C. he has stated for the very first time that accused Phool Chand has assaulted him with knife. It was further argued by the learned counsel for the appellants that as per the injury report, there was only one mentioned at serial no. 3 i.e., 1 cm x.2 cm skin deep incised wound on ventral aspect of left wrist joint, 5 cm above left wrist joint and no other wound was found on the body of injury and even in the G.D. which was proved by PW-5 no such injury was found on the body of injured which could be serious in nature. Which creates doubt on the version of prosecution.

17. Learned counsel for the appellants submitted that witness PW-2 Pappu @ Nagesh (injured witness) could not prove it beyond doubt that he had seen accused Moti Lal assaulting his father PW-1 Raghunath with knife. As such his statement could not be relied upon which also weakens the version of prosecution.

18. Learned counsel for the appellants further stated that prosecution could not prove it beyond doubt that the appellants were present on the alleged place of occurrence at that time, which also creates doubt on the version of prosecution.

19. Learned counsel for the appellants further stated that prosecution could not prove it beyond doubt that appellant Moti Lal had assaulted complainant with knife as a result of which complainant sustained serious injuries.

20. Next argument of the learned Counsel for the appellants is that the trial court materially erred in not believing the testimonies of defence evidences.

21. It has also been argued by the learned counsel for the appellants that cogent reasons have not been given by the learned trial court for not believing the defence evidences and further the appellants have specifically stated in his statement under Section 313 C.P.C that f has given false evidence to save the actual assailant.

22. Learned A.G.A. on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by court below and keeping in view the evidence on record, accusedappellants have been rightly convicted.

23. After considering the arguments advanced by the parties and after perusal of the material available on record, this court finds that the oral evidence discloses that there was indiscriminate attack by the accused on the complainant and the other injured person. As found by the courts below, there is contradictions between the oral testimony of the witnesses and the medical evidence. The evidence of the witnesses was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case.

24. Further Hon’ble Apex Court in case of Amar Singh V State of Punjab 1987 1 SCC 679 [LQ/SC/1987/182] had held as under:-

10…...Thus the evidence of PW 5 is totally inconsistent with the medical evidence. This Court in Ram Narain Singh v. State of Punjab [(1975) 4 SCC 497 [LQ/SC/1975/216] : 1975 SCC (Cri) 571 [LQ/SC/1975/216] : AIR 1975 SC 1727 [LQ/SC/1975/216] ] has laid down that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. There is no explanation for the apparent total inconsistency between the evidence of PW 5 and the medical evidence.

25. Further Hon’ble Apex Court in case of Viram V State of M.P. (2022) 1 SCC 341 [] had held as under:-

13. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eyewitnesses. As found by the courts below, there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v. State of Punjab Amar Singh v. State of Punjab, (1987) 1 SCC 679 [LQ/SC/1987/182] : 1987 SCC (Cri) 232] , this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case.

26. It is also noteworthy that in instant case there is no direct evidence came forward during the trial, the trial court could not have based the convction of the appellants on conjecture and surmises. In the instant case the evidences brought on record which has not been fully established however the facts so established are to be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of conclusive nature so as to rule out every possible hypothesis except the one to be proved i.e. complicity of the accused.

27. Further, it is observed that the instant case is a classic example of false implication of the appellants due to personal vendetta wherein the entire prosecution version is concocted, and the reliance has been placed upon interested witnesses, further prosecution has failed to produce any independent witness for corroboration of its own version.

28. Further , in opinion of this court the evidence produced by the witnesses casts a great doubt as to the commission of any offence by the appellants and consequently the benefits of that doubt must go to the appellants.

29. Considering the fact and circumstances of the case, I am of the view that the conviction needs to be set aside and the appeal deserves to be allowed.

30. In the light of the above discussion, as far as it relates with the conviction of the appellants is upheld and the appellants are acquitted from the charges leveled against them under section 323 read with section 34 I.P.C. and under section 325 read with section 34 I.P.C.

31. The personal bonds and surety bonds of the appellants are canceled and their sureties are discharged.

32. A certified copy of the order be also sent to the court concerned for compliance.

33. Office is directed to communicate this order to the court concerned for necessary compliance.

34. Lower court record, if any, shall also be sent back to the district court concerned.