State of Uttarakhand v. Sunil Rathi

the chick FIR and made necessary entries the GD; PW12 informant/victim Khushal Singh; PW13 and PW14 are Investigation Officers.

4. In his defence, accused presented an alternative version of events, claiming that it was the duty officer Khushal Singh and other jail authorities who abused and assaulted him while he was in jail and in which he suffered many injuries including a head injury, which was inflicted by PW4 Rakesh Verma from a lathi. He further argued that, in an attempt to cover up the incident, a report was falsely lodged against him. In defence, accused examined himself as DW1; one Mintu Chaudhary as DW2 and Dr. A.K. 3 Paliwal, who medically examined him on orders of the Court, as DW3.

5. After appreciating the evidence, learned Trial Court held the accused not guilty and acquitted him. In holding so, the Trial Court appears to have been prompted, inter alia, by the following considerations, which Mr. Alok Kumar, learned Counsel for the accused, has also highlighted: (i) PW1 and PW4 are hearsay witnesses. (ii) PW6, PW7 and PW9, who are inmates/independent witnesses, support the prosecution story and turned hostile. (iii) PW5, who is also an inmate, did not support the prosecution story inasmuch as he admitted in his cross-examination that he did not see the alleged incident and only heard about it. (iv) PW2 though supported prosecution version, but he stated in his cross- examination that except the head injury, he did not notice any other injury on the person of accused. (v) PW3 supported prosecution story but admitted in his cross- examination that the scuffle took place before his entering the barrack and accused was treatment prior complainant. He has also admitted that he did 4 not see any injury on the person of complainant Khushal Singh. (vi) Complainant Khushal Singh (PW12) has reiterated the version stated by him in the FIR. However, in his cross- examination, when he was asked about the injuries sustained by the accused, he pleaded ignorance as to how he sustained so many injuries. (vii) No independent witness supported the case of prosecution. (viii) PW10 Dr. Anil Kumar Garg, who allegedly examined the accused just after the incident, noticed only two injuries including the head injury, whereas DW3 noted as many as nine injuries on the person of the accused. (ix) The medical reports describe the head injury sustained by the accused as being “long in shape” and a lathi, being a cylindrical object, would typically cause such an injury, while hitting the head against the wall would ordinarily cause injury of a “circular” or “semi- circular” shape. Thus the Trial Court noted that all this probabilise the plea taken by the accused.

6. Acknowledging above gaps in the prosecution evidence, trial court concluded that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true and injuries may not have been caused to the accused in the manner alleged by the prosecution and thus acquitted the accused respondent. 5

7. We have carefully examined the evidence on record. In the instant case, a significant factor is the unexplained injuries suffered by the accused. DW3, who examined the accused, two days after the alleged incident, on the orders of the Court, noticed as many as nine injuries including the head injury and stated in his testimony that these injuries were caused by some hard and blunt object. Except one head injury, none of these injuries were noticed either by PW10 or any other prosecution witness. There is also a difference of opinion with regard to the manner in which the head injury was caused. The contradictions in the medical reports and the testimonies of the medical experts undermine the reliability of prosecution version events. Furthermore, prosecution failed to provide any reasonable explanation as to how the accused sustained such injuries. Failure to account for the injuries suffered by the accused raises serious doubts regarding the prosecution story and suggests the possibility of a different sequence of events than the one projected by the prosecution.

8. Although it is settled law that non- explanation of injuries on accused does not automatically vitiate the prosecution’s case, however, such a non-explanation assumes greater importance where contradictions in the medical reports and the testimonies of the medical experts and where 6 the defence gives a version which competes in probability with that of the prosecution.

9. It is also a settled law that if the acquittal is justified on a probable view taken by the trial court, it should not be interfered with, unless compelling circumstances and substantial reasons or grounds to do so. No such compelling circumstance or ground has been pointed out by learned State Counsel to justify disturbing the finding of acquittal.

10. The above being the position, we find no merit in the appeal, which deserves dismissal. We direct accordingly. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.) Pr