Judgment ( 1 ) THIS appeal has been filed by the complainant under Section 378 (4), Cr. P. C. against the judgment and order of acquittal dated 24-1-78 passed by the learned Sessions Judge, Jodhpur in Cr. Appeal No. 35/77 vide which the learned Sessions Judge accepted appeal of the accused-respondent against his conviction under Section 323, I. P. C. and order of sentence passed thereunder by the Judicial Magistrate No. 4, Jodhpur. ( 2 ) BRIEFLY stated, the prosecution story giving rise to the prosecution of the accused-respondent culminating into the present appeal is that the appellant was an employee of the Posts and Telegraphs Department (for short the Pandt Department) of the Government of India. Besides, he was also Divisional Co-ordinating General Secretary of the National Union of Postal Employees. He was earlier posted as Sub-Post Master, Railway Sub-Post Office, Jodhpur. The respondent (accused) was Post Master General, Pandt Department, Rajasthan, Jaipur. It was alleged that the complainant-appellant made certain complaints against the then Superintendent of Pandt Department, Jodhpur Mr. H. W. Bhag and, consequently, he was transferred from his post. Mr. Bhag was a favourite of the accusedrespondentand he was annoyed with the complainant. This resulted in transfer of the complainant from Jodhpur to Nagaur and, lastly to Salumbar in Udaipur District. The complainant approached the accused-respondent at his Jaipur office to make a grievance against his transfer which is said to be against the rules. The accused asked him to represent his case before him on his ensuing inspection visit to Jodhpur in near future. It was on 25-10-71 that the accused came to Jodhpur for inspection of local offices of Pandt Department. On that day at about 5. 45 P. M. , the accused came out of the main Post Office situated near the main Jodhpur Railway Station. He boarded departmental jeep stationed in front of the gate of the H. P. O. , Jodhpur. The complainant approached him and he started narrating his grievance against his transfer which enraged the accused who gave a blow of kick of left foot on his abdomen and hurled abuses at him and he was intentionally insulted resulting in giving him provocation knowing that the same would result in commission of breach of peace by the complainant. However, as a dutiful and peace living disciplined citizen, the complainant kept restraint and he did not react. However, as a dutiful and peace living disciplined citizen, the complainant kept restraint and he did not react. The accused while pushing away the complainant, left the place hurriedly in his jeep. The complainant immediately went to the Police Station, Sardarpura, Jodhpur and lodged Ex. D. 3 report. Since Ex. D. 3 did not reveal commission of any cognizable offence and instead offences under Sections 323 and 504, I. P. C. appear to have been committed, he was directed to have a recourse to the legal proceedings in a competent Court of law. He lodged a complaint, for the alleged commission of offences by the accused, in the Court of Judicial Magistrate No. 4, Jodhpur. It was also alleged in the complaint that since the complainant was under great pain and stress due to blow of kick given on his abdomen by the accused and, therefore, he got himself treated at the hospital and also got himself medically examined on the next day of the occurrence and, lastly, Ex. D. 5 complaint was lodged, as above. ( 3 ) THE learned trial Magistrate, after completion of proceeding under Sections 200 and 202, Cr. P. C. took cognizance of commission of offences under Sections 323 and 504, I. P. C. and summoned the accused to face trial. The accused appeared to face the trial and, at the first instance, moved an application under Section 197, Cr. P. C. challenging the order of taking cognizance and further proceedings against him claiming that whatever acts were alleged to have been committed by him, the same were committed during the course of discharging of his legal duties and, therefore, a previous sanction, as envisaged by Section 197, Cr. P. C. , was a condition precedent for his trial. This objection was overruled by the trial Magistrate but, however, the same was upheld by the High Court. The accused went in appeal to the Honble Supreme Court and the Apex Court was pleased to have set aside the revisional order of the High Court thereby restoring the order of the trial Magistrate. Accordingly, the trial proceeded further. This objection was overruled by the trial Magistrate but, however, the same was upheld by the High Court. The accused went in appeal to the Honble Supreme Court and the Apex Court was pleased to have set aside the revisional order of the High Court thereby restoring the order of the trial Magistrate. Accordingly, the trial proceeded further. ( 4 ) THE complainant, besides himself, examined P. W. 2 Jagdish Purohit, P. W. 3 Udai Karan, P. W. 4 Akhey Dutt and P. W. 5 Ratan Raj at the pre-charge stage and, after hearing both sides, proceeded to formally charge the accused-respondent for commission of offences punishable under Sections 323 and 504, I. P. C. , to which the accused pleaded not guilty. All the aforesaid five witnesses examined prior to framing of charge, were re-called and were subjected to recross-examination by the defence side. In addition to the aforesaid witnesses, P. W. 6 Mool Raj, P. W. 7 Sukdi Raj and P. W. 8 Bal Kishan were examined by the prosecution. ( 5 ) THE accused was examined under Section 342, Cr. P. C. and he denied the prosecution story and the supporting statements of the witnesses as false, concocted, perjured and motivated. He further stated that no such incident ever took place. On the contrary, since the complainant-appellant claimed a large amount of Rs. 15,233/- as per Ex. D. 18 statement falsely and, therefore the Delhi Special Police Establishment Branch of C. B. I. , had taken up the matter and the same was under investigation. At the behest of Mr. V. K. Thanvi, the then, S. P. , SPE (C. B. I.), Jaipur, the complainant-appellant was transferred out of Jodhpur Division since he was involved in a serious case of criminal misconduct in regard to false claim ranging to about 16000/- and who was not satisfied with the previous transfer of the complainant from his post of Sub-Post Master, Jodhpur to Nagaur. He also examined as many as 8 witnesses in his defence. He also examined as many as 8 witnesses in his defence. Besides, documentary evidence was also adduced in support of theocular testimony led by the parties ( 6 ) AFTER hearing both the sides, the learned trial Magistrate, mainly relying on the ocular testimony of the complainant as well as P. W. 4 Akhey Dutt and P. W. 6 Mool Raj and, partly, on the evidence of P. W. 3 Udai Karan, held that no offence under Section 504, I. P. C. was proved to have been committed but, however, relying on the same evidence, he held the accused-respondent liable for commission of offence punishable under Section 323, I. P. C. and, in default of payment of fine, one months R. I. was also imposed. ( 7 ) BEING aggrieved, accused preferred appeal in the Court of Session, Jodhpur and the learned Sessions Judge, vide his impugned judgment and order, while thoroughly discussing the evidence of both the sides did not find the ocular testimony of the complainant-appellant as well as his witnesses trustworthy, who were relied upon in support of his case by the learned trial Magistrate and, as a result, the learned Sessions Judge set aside the judgment and order of conviction passed against the accused-respondent and hence the complainant-appellant preferred this appeal, as above. ( 8 ) I have heard the learned counsel for the appellant, as well as, the learned counsel for the respondent and have perused the impugned judgment as well as the one passed by the trial Magistrate, besides the record of the trial Court and considered the same carefully. ( 9 ) THE learned counsel for the appellant while assailing the impugned judgment passed by the learned Sessions Judge, and supporting the legality, fairness and propriety of the judgment passed by the learned trial Magistrate, has contended that the learned appellate judge did not appreciate the evidence of the complainant correctly and in right perspective and instead took a very superficial view of the evidence giving importance to minor and insignificant discrepancies and infirmities, as are alleged to have been found in the statements of the complainant besides P. W. 4 Akhey Dutt and P. W. 6 Mool Raj as well as P. W. 3 Udai Karan, who was also partly relied upon by the learned trial Magistrate. ( 10 ) HE has further argued that the genesis and substratum of the prosecution story about the alleged occurrence was fully supported by the ocular testimony of the complainant, as well as, his aforesaid witnesses. Merely because the complainant and his witnesses belonged to one and the same caste and the witnesses were not residents of the place or nearby whereat the occurrence took place, that cannot be a reason for discarding their evidence specially when the learned trial Magistrate, after thorough appreciation of the same, found their evidence to be reliable in regard to the occurrence resulting in causing hurt by the accused-respondent to the complainant-appellant. Besides, the complainant did not lose any time to immediately report this incident at the Police Station, Sardarpura, Jodhpur whereat Ex. D. 3 report was taken down in the Daily Diary of the Police Station at 8. 15 P. M. Besides, on 27-1-78 itself the complainant lodged the present complaint in the competent magisterial Court. Besides, he also went to the Hospital for examination and medicines. However, there was no visible external injury on his person and, therefore, no injury report could be procured and, therefore, since it was a simple case of causing simple injury as per the allegations of the complaint, the mere absence of any visible external injury was never damaging to the case -- complainants case. Besides, the complainant named all the witnesses who were examined by him either in Ex. D. 3 or in the complaint or the list of witnesses filed in support thereof subsequently. As a result, merely because the prosecution witnesses so examined by the complainant in support of his allegations of the complaint were not immediately named in Ex. D. 3 or the complaint or the list of witnesses filed there along with or in the subsequent list, that by itself does not make such witnesses unbelievable and, instead the learned trial Magistrate rightly believed the testimony of such witnesses, the learned appellate Judge fell into a serious error by disbelieving such witnesses on this score as well. D. 3 or the complaint or the list of witnesses filed there along with or in the subsequent list, that by itself does not make such witnesses unbelievable and, instead the learned trial Magistrate rightly believed the testimony of such witnesses, the learned appellate Judge fell into a serious error by disbelieving such witnesses on this score as well. ( 11 ) THEREFORE, the learned counsel for the appellant has submitted that since the impugned judgment is based on conjectures and surmises which has resulted in miscarriage of justice and misreading of the evidence, as a result of which the accused-respondent has been wrongly acquitted and so the judgment is perverse and against the evidence on record. That being so, it is further argued that the impugned judgment andorder of acquittal be set aside and, consequently, the judgment and order of conviction so passed by the learned trial Magistrate be restored. ( 12 ) THE learned counsel for the accused-respondent while supporting the legality, propriety and regularity of the impugned judgment, has vehemently countered the arguments advanced by the learned counsel for the appellant and has further maintained that the impugned judgment is fully merited and there is no infirmity or perversity in the same and, therefore, the same warrants no interference. Besides, this incident took place on 25-10-71 and so a period of more than 25 years has passed since then. Thus, there are no compelling reasons to set aside the impugned judgment and order thereby converting the same into conviction and sentencing of the accused-respondent. ( 13 ) IT may be appreciated that the incident took place on 25-10-71. The complainant was an employee of the Pandt Department under the accused who was Post Master General of the Pandt Department, Rajasthan, Jaipur. It also cannot be denied that the accused-respondent, on receipt of Ex. D. 14 letter from the S. P. , SPE (C. B. I), Jaipur, wrote Ex. D. 15 and Ex. D. 16, and the complainant was, lastly, transferred, who was earlier transferred from Jodhpur to Nagaur, as above, to Salumbar in Udaipur District. Besides, the complainant came forward with the story that about 11/2 months before this incident, he approached the accused in the office at Jaipur and he was asked to agitate his grievance before him on his ensuing visit to the Jodhpur offices of the Pandt Department. Besides, the complainant came forward with the story that about 11/2 months before this incident, he approached the accused in the office at Jaipur and he was asked to agitate his grievance before him on his ensuing visit to the Jodhpur offices of the Pandt Department. ( 14 ) THE complainant has clearly stated in his complaint that since he was given forceful blow of kick on his abdomen and, therefore, the seat of injury became very painful and, therefore, he went to the hospital and took medicines therefrom. Besides, he also clearly stated that he went to the Medical Officer on the next date of the occurrence and obtained injury report. Besides, he also mentioned in the complaint itself that he was filing the prescription note as well as injury report so obtained by him along with the complaint. However, during the course of trial, he has not examined any medical evidence nor did he bring on record any documentary evidence in support of his treatment and examination by any Medical Officer, as well as, any other proof in support of administration or application of any medicine as such. ( 15 ) IN the aforesaid circumstances, since this appeal against acquittal is being disposed of well after passage of a period of 25 years from the date of the alleged incident and the appellate judgment was also so passed by the learned appellate Judge on 24-1-78 and, therefore, it has to be kept in mind that the accused-respondent was not held guilty by the appellate Court and the same verdict has been in force for more than last 25 years. Besides, as many as eight witnesses were examined by both the sides in support of the complaint filed by the appellant as well as in the defence of the accused-respondent. Besides, as many as eight witnesses were examined by both the sides in support of the complaint filed by the appellant as well as in the defence of the accused-respondent. The learned appellate Judge did not find the prosecution story trustworthy which was also partly disbelieved by the learned trial Magistrate as well and, as a result, the prosecution story was found to be not proved beyond reasonable manner of doubt and the same resulted in acquittal of the accused-respondent ( 16 ) THE Honble Apex Court has also in Dhanna v. State of Madhya Pradesh, (1996) 6 JT (SC) 652 : (1996 Cri LJ 3516) observed as under, in para 11 at page 656 : of JT (SC) : (at p. 3519 of Cri LJ) :"though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial and Court acquitted him, he would retain that benefit in the appellate Court also. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial and Court acquitted him, he would retain that benefit in the appellate Court also. Thus appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed (Durgacharan Naik v. State of Orissa, AIR 1966 SC 1775 : (1966 Cri LJ 1491), Caetano Piedade Fernandes v. Union Territory of Goa, Daman and Diu, Panaji, Goa, AIR 1977 SC 135 : (1977 Cri LJ 167); Tota Singh v. State of Punjab, (1987) 3 JT (SC) 20 : AIR 1987 SC 1083 : (1987 Cri LJ 974); Awadhesh v. State of M. P. , (1988) 2 JT (SC) 72 : AIR 1988 SC 1158 : (1988 Cri LJ 1154); Ashok Kumar v. State of Rajasthan, (1990) 4 JT (SC) 149 : AIR 1990 SC 2134 : (1990 Cri LJ 2276 ). " ( 17 ) NOW reverting to the merits of the appeal, it is to be considered whether the complainant had proved beyond reasonable manner of doubt that the accused-respondent gave forceful blow of his left foot thereby causing simple hurt to the complainant thereby incurring liability for being punished under Section 323, I. P. C. ( 18 ) IT is also worthwhile to mention that the complainant also alleged that an offence punishable under Section 504, I. P. C. was committed by the accused-respondent but the learned trial Magistrate did not find any substance in the same and the accused was acquitted by the trial Magistrate. The complainant did not challenge the same and the verdict of not guilty passed in favour of the accused-respondent in respect of the offence under Section 504, I. P. C. has become final. It further shows that the prosecution story did not find full favour with the learned trial Magistrate as well. ( 19 ) AS regards the evidence, besides P. W. 1 Pukh Raj complainant, though he examined as many as 7 more witnesses in support of his version but the learned trial Magistrate also did not rely on the testimony of P. W. 2 Jagdish, P. W. 5 Ratan Raj, P. W. 7 Sukh Raj and P. W. 8 Bal Kishan. They were disbelieved solely on the ground that their presence at the place of occurrence was not believable and instead they were false and tutored witnesses who had volunteered to support the case of the complainant and, therefore, their evidence was discarded. Besides, P. W. 7 Sukh Raj found to be a previous convict and had a criminal background and the complainant did seize the opportunity to adduce evidence of such witnesses in support of his case. Besides, as regards testimony of P. W. 2 Jagdish whose presence was also omitted in Ex. D. 3 report, was also held to be partly reliable and his evidence was taken to be accepted with great care and caution. Besides, P. W. 4 Akhey Dutt and P. W. 6 Mool Raj were held to be reliable witnesses and, accordingly, findings of the conviction and resultant sentencing are based merely on the testimony of P. W. 1 Pukh Raj and P. W. 4 Akhey Dutt and P. W. 6 Mool Raj. ( 20 ) P. W. 1 Pukh Raj stated that on 25-10-71 since the accused was inspecting local offices of Pandt Department and, it was at about 6 P. M. that the accused came out of the H. P. O. , Jodhpur and he boarded a jeep and sat on the front side by the side of the drivers seat. He was standing by his side. He presented a written representation for cancellation of his transfer to the accused. On seeing the representation so presented before him, the accused gave a blow (kick) of his left foot on his abdomen. He also abused and insulted him by uttering Thereafter, the accused immediately left from the scene of occurrence in the jeep driven by a driver. ( 21 ) AS is also discussed and held by the learned appellate Judge, the complainants statement is that he presented a written representation which enraged the accused who gave him a blow of kick of left foot on his abdomen and hurt him. This is to be appreciated that, as per the case of the complainant himself, as is also evidenced from the compliant lodged by him, he did not mention in Ex. D. 5 complaint that he ever presented any written representation to the accused and on seeing the same, he became infuriated and the incident took place. This is to be appreciated that, as per the case of the complainant himself, as is also evidenced from the compliant lodged by him, he did not mention in Ex. D. 5 complaint that he ever presented any written representation to the accused and on seeing the same, he became infuriated and the incident took place. On the contrary, he has clearly stated in A to B portion of the complaint that he approached the accused to request him for cancellation of his transfer and as soon as he started narrating his grievance, the accused got excited and immediately gave a blow of kick of his left foot and uttered the aforesaid insulting words. There is no mention of presentation of any representation, as is stated by him in the statement before the Court during the trial. Similarly, he clearly stated in Ex. D. 3 report lodged, in the first instance, at the Police Station, Sardarpura that he started making a request to the accused-respondent about his retransfer and the incident, as above, took place. However, he made a somersault thereby, subsequently, stating that he had presented a written representation to the accused and which resulted in the alleged incident. Besides, he had reported in Ex. D. 3 that the accused called him and asked him to go away since he was complaining against him and, simultaneously, he was also approaching him for cancellation of his transfer, he did not repeat other words as are referred to above and which find place in the. complaint. He further stated that Govind Ram, Udai Karan, Jagdish and Jethmal were present at the place of occurrence. He also stated that Mr. Bhag, Superintendent, Pandt Department, Jodhpur was transferred merely on the complaints made by him and, therefore, the accused got enraged and displeased with him and he was transferred solely to wreak vengeance on him by the accused. Besides, he also denied that he was pushed away by the accused before he left the scene of occurrence in the vehicle against his version given in Ex. D. 3 report and Ex. D. 5 complaint. Similarly, though, presently, representation so given by him is stated to have been thrown away by the accused but the same is omitted from Ex. D. 3 and Ex. D. 3 report and Ex. D. 5 complaint. Similarly, though, presently, representation so given by him is stated to have been thrown away by the accused but the same is omitted from Ex. D. 3 and Ex. D. 5 and it further fortified the subsequently improved statement of the complainant that he had presented any written representation before the accused. ( 22 ) AS a result, there could not have arisen any opportunity for the accused to have thrown away any representation, as is alleged by the complainant. ( 23 ) HE stated in Ex. D. 3 that the witnesses, who are so named in Ex. D. 3, helped him to get up and he was taken to the Hospital whereat he was administered mixture as treatment for the pain resulting from injury caused to him. He has also mentioned in Ex. D. 5 complaint that he went to the Hospital on the same day and received treatment for the injury and took medicines and was, on the next day of the occurrence, examined by the Medical Officer and obtained a medical report and he was filing both the prescription as well as injury report with the complaint and, he never brought on record any medical evidence in proof of any injury or hurt received by him. ( 24 ) THE learned counsel has contended that since this was a case of causing of simple injury and there being no external visible symptom of injury on the face of direct ocular testimony, it is insignificant whether the complainant was ever medically examined and treated as such or not. Since the accused kicked the complainant on his abdomen with his left foot and the complainant was putting on clothes which did not leave any visible marks of injury on the seat of injury and, therefore, it is immaterial whether there was any medical evidence or not. This argument of the learned counsel for the appellant cannot be appreciated since the complainant himself has come forward with the case that he received severe blow of a kick resulting in severe pain and he had to be taken to the Hospital for treatment and, thereafter, on the very next day of the occurrence, he was medically examined and also obtained injury report. If it were so, the same ought to have been presented and proved during the course of trial and; for the reasons best known to him, he did not come forward with medical evidence in support of his statement. It shows that he has intentionally lied in respect of the nature of the injury, if any, received by him as well as its treatment and medical examination, if any. It can further be presumed that there was no proof of causing of any hurt on the body of the complainant and, as a result, had such documentary evidence been brought on record, the same would have gone against the complainant. It warrants drawal of an adverse inference against the complainant. ( 25 ) THE learned appellate judge has discussed the evidence of the prosecution witnesses, including the complainant, in regard to discrepancies and inconsistencies which have crept in their statements at length and it does not warrant repetition of the same. ( 26 ) AS regards ocular testimony of the rest of the witnesses examined by the prosecution, as already discussed above, the learned trial Magistrate as well as the learned appellate Judge did not place any reliance on the testimony of P. W. 2 Jagdish, P. W. 5 Ratan Raj, P. W. 7 Sukh Raj and P. W. 8 Bal Kishan. On perusal of their statements, their presence at the scene of occurrence does not inspire any confidence and there was no cogent reason for their presence at the place of occurrence since none of them was either resident of any place situated near the place of occurrence nor any of them was carrying any business or profession thereat. ( 27 ) BESIDES, as regards testimony of the rest of the witnesses, it was reported in Ex. D. 3 that Udai Karan, Govind Ram, Akhey Dutt, Jethmal and Mool Raj were present at the place of occurrence. Instead, in Ex. D. 5 complaint, it was stated that Udai Karan, Govind Ram and Jethmal besides Jagdish were present there. Jagdish has not been named in Ex. D. 5. Besides, he has also not been found to be wholly reliable by the learned trial Magistrate as well. Govind Ram was not examined by the complainant and instead he has been examined as D. W. 2 by the accused-respondent in his defence. The name of Akhey Dutt has been omitted in Ex. D. 5. Besides, he has also not been found to be wholly reliable by the learned trial Magistrate as well. Govind Ram was not examined by the complainant and instead he has been examined as D. W. 2 by the accused-respondent in his defence. The name of Akhey Dutt has been omitted in Ex. D. 5. The complainant stated in his statement on oath, besides Govind Ram, Udai Karan, Jagdish and Jethmal, who were previously known to him, were present at the place of occurrence. He did not name P. W. 4 Akhey Dutt in his examination-in-chief as well. Jethmal was not examined by the complainant. He also did not hesitate to examine P. W. 5 Ratan Raj, P. W. 7 Sukh Raj and P. W. 8 Bal Kishan, who were neither named in Ex. D. 3 nor in Ex. D. 5 complaint and they were also not named in the examination-in-chief of the complainant to have seen the alleged occurrence. It further shows that the complainant went on adding and substracting names of the witnesses which leads to the conclusion that he had selected only those persons who volunteered till last to depose in support of his case. The complainant named one Moola Ram in Ex. D. 3 whereas he omitted name of either Moola Ram or Mool Chand from the list of the alleged witnesses of the occurrence in his examination-in-Chief. During the course of trial P. W. 4 Akhey Dutt has been named in Ex. D. 3 report but his name does not find mention in Ex. D. 5 complaint. The complainant has given a false explanation about his omission that though he was previously known to him, since Akhey Dutt was approached for giving evidence in support of his complaint prior to lodging of the complaint but since he was apprehensive of action against him in case he came forward with a truthful story and so his service was endangered in case he deposed in his favour, as a result, he omitted his name from the roll of the complaint. This version is not supported by Akhey Dutt himself. Akhey Dutt is a retired Head Constable of the Police Department. He has stated that he was told by the complainant five or ten days after the incident that his name was recorded in Ex. This version is not supported by Akhey Dutt himself. Akhey Dutt is a retired Head Constable of the Police Department. He has stated that he was told by the complainant five or ten days after the incident that his name was recorded in Ex. D. 3 report and so he was asked to depose before the Court that he was standing there and he had consented to depose in his favour. He has clearly negatived the version given by the complainant in this respect which belies the version of the complainant. Therefore, the testimony of P. W. 4 Akhey Dutt, after a thorough discussion and its appreciation based on well reasoned grounds, laid the learned appellate Judge to disbelieve his evidence and there is nothing on record to show that he was present at the place of occurrence and had witnessed the occurrence, as is the case of the complainant. ( 28 ) P. W. 6 Mool Raj has not been named in either Ex. D. 3 or Ex. D. 5. However, there is a mention of the name of Moola Ram in Ex. D. 3 while there is complete omission of the name of either Mool Raj or Moola Ram in Ex. D. 5 complaint. There is no plausible explanation for omission of the name of Mool Chand or Moola Ram in Ex. D. 5. ( 29 ) THE learned trial Magistrate appears to have laboured under a mistaken notion while holding that the complainant might have misdescribed the name of Mool Raj as Moola Ram in Ex. D. 3 report. Since the complainant himself has not come forward with such an explanation/nor does such an explanation inspire any confidence and the same is far from being natural and nearer to the truth and, therefore, the learned appellate Judge rightly brushed aside the testimony of Mool Raj. ( 30 ) P. W. 3 Udai Karan has clearly stated that he appeared as a witness from the side of the complainant in a criminal case against S. D. Mittal, Heal Clerk etc. , although, for the reasons quite obvious, the complainant pleaded ignorance about it. Similarly, he also appeared as a witness from the side of the complainant in the case filed under Section 500, I. P. C. against Mr. M. I. Khan, Lecturer. , although, for the reasons quite obvious, the complainant pleaded ignorance about it. Similarly, he also appeared as a witness from the side of the complainant in the case filed under Section 500, I. P. C. against Mr. M. I. Khan, Lecturer. It again shows that P. W. 3 Udai Karan was habitually appearing as a witness from the side of the complainant. There was no cogent reason for the presence of this witness at the place of the occurrence and his testimony also does not inspire confidence and the same has been rightly disbelieved by the learned Judge on very sound reasons and there is nothing to differ from the same. ( 31 ) AS a result of above discussion, none of the witnesses examined by the complainant in support of his allegations against the accused inspires confidence in regard to his presence at the place of occurrence and to have seen the occurrence as is unfolded in the complaint Ex. D. 5. The learned appellate Judge did not commit any error or illegality while discussing, appreciating and discarding evidence of the witnesses examined by the complainant, holding that none of the witnesses so named and examined, was present at the place of occurrence, except D. W. 2 Govind Ram, who was not examined by the complainant and instead he was examined by the accused in his defence and that all the witnesses so examined were picked up by the complainant to support his prosecution case. They all belonged to one and the same caste and were interested in each other and, as a result, all the witnesses were held not be present at the place of occurrence and, consequently, their testimony was disbelieved. ( 32 ) AS regards complainant himself, as is his admitted case, it was accused who transferred him out of Jodhpur Division and naturally, it was the complainant himself who had a grudge and motive to have falsely implicated the accused. The complainant stated that he went to Jaipur and made a request for cancellation of his transfer and he felt satisfied after being told by the accused that he should see him at the time of his ensuing visit to Jodhpur offices of Pandt Department in the near future. It was after about 11/2 months that the alleged occurrence took place, as per the version of the complainant. It was after about 11/2 months that the alleged occurrence took place, as per the version of the complainant. The accused, being a very high and responsible officer, could not have acted in the manner he is alleged to have acted, instead, the complainant had an ulterior motive for lodging of a complaint against the accused who was not agreeable to re-transfer of the complainant and, on the other hand, the accused himself did not have similar ulterior motive to have so assaulted and hurt the complainant in a public place in view of all and sundry, as alleged by the complainant. ( 33 ) IT has been further brought out, as a result of cross-examination of the complainant by the defence side, that he had also lodged criminal complaints under Section 500, I. P. C. against the then Principal Medical Officer, M. G. Hospital, Jodhpur, Dr. D. G. Ojha, Mr. M. I. Khan and also lodged criminal complaint against Mr. S. D. Mittal and others under Section 323, I. P. C. It again shows that the complainant was in the habit of lodging such frivolous complaints thereby misusing the authority of Court. Besides, there was also an enquiry being conducted by the C. B. I. against the misconduct of the complainant, which had, as is statement of the accused, compelled him to transfer the complainant out of the Jodhpur Division. The complainant also admitted that he was subsequently removed from the service as well. ( 34 ) AS a result, the complainant, looking to the nature of his own evidence as well as that of his witnesses besides his conduct, this sort of evidence, is far from being creditworthy, and the same has not found favour with the learned appellate Judge and there are no compelling reasons warranting any departure from the conclusion so arrived at by the appellate Court. ( 35 ) BESIDES, as has been held by the learned appellate Judge as well and as also borne out of the statements of the defence witnesses so examined and the statement of the accused himself that the accused-respondent had boarded a departmental jeep No. RJQ 4800 and the same was left hand driven and, as a result, the accused could not have occupied left side of the vehicle being the seat at the driver of the vehicle who was Kishore Singh. Kishore Singh has not been examined but it is of no consequence. There is overwhelming evidence and the prosecution witnesses, too, could not prove beyond doubt that the vehicle was left hand driven one and not a right hand driven vehicle and, as a result, the accused could have naturally occupied the right front seat of the vehicle and, as a result, he could not have used his left foot to have kicked the complainant on his abdomen, as is the prosecution case. Instead, since he was sitting on the right front seat of the vehicle, he could have used his right foot but the prosecution case, right from beginning to end, has been that the accused while sitting in the front seat of the vehicle gave a forceful kick of his left foot which was impossible. Though the defence has not presented log-book of the vehicle showing as to whether it was a left hand driven vehicle or right hand driven vehicle in proof thereof but since there is over whelming ocular evidence in the form of statement of D. W. 1 H. C. Mehta, D. E. T. , has clearly given description of the vehicle who which belonged to his office and has stated that it was a left hand driven vehicle. Besides, he has also deposed that Ex. D. 10 photo is of the same vehicle which clearly shows that the driver of the vehicle is seated on left side of the vehicle exhibiting that it was a left hand driven vehicle and not a right hand driven vehicle. Shri Mehta was a senior and responsible officer and the vehicle belonged to his office and his testimony cannot be discarded on any valid ground, whatsoever. Besides, D. W. 1 H. C. Mehta, D. W. 2 Govind Ram, whose presence has been throughout admitted by the complainant himself, D. W. 4 Govind Tahalrahmani, Director (telegraphs), who was also posted at Jaipur in the office of the accused and was present at the time of the inspection of the offices of the Pandt Department at Jodhpur, have clearly stated that they were present along with the accused at the time when the occurrence is alleged to have taken place, by the complainant and that no such incident ever took place, as is the prosecution story. Besides, Ex. Besides, Ex. D. 11 inspection note also corroborates their presence along with the accused at and around the time of the alleged incident, as is the statement of D. W. 5 M. S. Zai, Post Master, H. P. O. , Jodhpur. ( 36 ) ON the basis of evidence adduced by the complainant as well as the defence evidence, since the evidence led by the complainant did not inspire confidence and the allegation of causing any hurt by the accused to the complainant was held not to have been proved beyond doubt by the complainant and so the impugned finding of acquittal of the accused-respondent suffers from no infirmity and the same cannot be held to be perverse and, therefore, in the aforesaid circumstances, the impugned judgment and order of acquittal passed in favour of the accused-respondent calls for no interference. ( 37 ) AS a result this appeal is devoid of any merit and the same deserves to be dismissed. ( 38 ) THEREFORE, this appeal is dismissed. The impugned judgment and order of acquittal is affirmed. Appeal dismissed.