JUDGMENT : V.M. DESHPANDE, J. 1. The State is before this Court since dissatisfied with the judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, Ramtek, on 26-6-2002 in Regular Criminal Case No. 93/1998, by which the learned Magistrate acquitted the respondents for the offence punishable under section 325 read with Section 34 of the Indian Penal Code. 2. Heard Miss Ritu Kalia, the learned Additional Public Prosecutor for the State. The Advocate for the respondents remained absent during the hearing. 3. The statement of Shridhar Menghre recorded at Primary Health Centre, Ramtek, on 3-4-1998 is treated as an First Information Report in the present case (Exh.13). It shows that his agricultural land is situate just adjacent to the agricultural land of Tukaram (original accused No. 3). Canal goes through these two lands. On 2-4-1998, he was grazing his she-buffalo on the boundary of his agricultural land. That time, Tukaram was irrigating his agricultural field with the help of water that was flowing from the canal. The statement further shows Shridhar asked Tukaram as to when the irrigation of his land will be completed. On that count, a verbal altercation took place in between them. Thereafter, Tukaram gave a call to other accused Parashram, Ishwar and Liladhar. Ishwar caught hold the collar of Shridhar and Parashram gave a stick blow on his head due to which he received injury. It is also stated that he was also assaulted on the hand by the other accused persons. It is his further statement in Exh. 13 that Tukaram and Liladhar were giving choicest abuses to him and also instigating to make assault. According to Exh. 13 due to the injury he fell unconscious. After regaining consciousness, he came to his house and, in the night, he made a report to the police. It is also stated that he lost his watch of make 'HMT' in that assault, on the spot itself. The aforesaid statement was recorded as an FIR vide Crime No. 62/1998 for the offence punishable under section 325 read with Section 34 of the I.P.C. with Police Station, Ramtek. The printed FIR on record, is at Exh.14. The investigation was entrusted to Israelkhan and Esufkhan (PW 6). He made a visit to the spot of the incident on 4-4-1998. The spot was shown by the brother of the injured. He is Hiraman (PW 3). The printed FIR on record, is at Exh.14. The investigation was entrusted to Israelkhan and Esufkhan (PW 6). He made a visit to the spot of the incident on 4-4-1998. The spot was shown by the brother of the injured. He is Hiraman (PW 3). The panchnama of the spot was drawn (Exh.22). He also recorded the statements of the witnesses. The accused persons were arrested. Parashram, according to the prosecution, gave his memorandum statement (Exh.23), by which he agreed to show the place where he concealed the weapon, namely, stick. The said stick was seized, on the discovery being made by Parashram. The recovery panchnama is at Exh.23. On completion of usual investigation, the charge-sheet was presented in the Court of learned Magistrate. 4. Charge was framed against the accused persons. They denied the same and claimed for their trial. The prosecution, in order to bring home the guilt of the accused persons, examined as many as six witnesses. After appreciating the evidence of the prosecution, the learned Magistrate acquitted all of them by recording the finding that the prosecution has failed to prove its case against the accused persons. 5. The learned Additional Public Prosecutor submitted that the learned Magistrate has erroneously ignored the evidence of injured Shridhar (PW 1). She has also submitted that the prosecution has proved the fracture that occurred to Shridhar by pointing out the document (Exh.19) - the certificate given by PW 5 - Dr. Sunita Bhade and submitted that it is a fit case wherein the Appellate Court should step into the matter to avert the miscarriage of justice, that has been done at the hands of the learned Magistrate. 6. In order to secure conviction for the offence punishable under Section 325 of the Indian Penal Code, the first ingredient that the prosecution is obliged to prove is that the injured has suffered grievous injury. Dr. Sunita Badhe is examined by the prosecution in that behalf. Though in her cross-examination she has stated that injured-Shridhar was examined by her, for the reasons best known to the prosecution, the injury certificate of Shridhar is not filed on record. Further PW 5 Dr. Sunita is completely silent in her evidence as to what were the injuries she noticed on the person of Shridhar when she examined him. Though in her cross-examination she has stated that injured-Shridhar was examined by her, for the reasons best known to the prosecution, the injury certificate of Shridhar is not filed on record. Further PW 5 Dr. Sunita is completely silent in her evidence as to what were the injuries she noticed on the person of Shridhar when she examined him. In absence of the evidence in that behalf and in the absence of any injury certificate of Shridhar, the Courts are at lurch to find out what were the injury suffered by Shridhar. Insofar as the submission of the learned A.P.P. in respect of Exh.19 is concerned, it has to be seen that as per the evidence of Dr. Sunita one X-ray was placed before her by the police for giving her opinion. She states that after examining the said X-ray, she noticed that there is a skull fracture and, accordingly, she gave the certificate Exh.19. The X-ray plate which was placed before Dr. Sunita in her examination is not produced on record by the prosecution. Further, the X-ray Technician who has taken the X-ray of the patient, is also not examined by Dr. Sunita, as candidly admitted in her cross-examination and it will be useful to reproduce her version which she gave in vernacular. In my view, the aforesaid admission given by Dr. Sunita has completely destroyed the case of the prosecution. It appears that Exh. 19 on which the learned APP has strongly relied, has given by said Dr. Sunita only on the say of the police. In that view, non-production of the X-ray plate and the injury certificates assumes importance. In that view of the matter, this Court has not other option but to record a finding that the prosecution has utterly failed to prove the injury suffered by Shridhar. 7. Exh.13, the statement which is treated as an FIR, recites that after regaining consciousness, Shridhar reached his house in the night, he lodged the report with the police, however the said report is not coming on record. Further, Exh.13 is completely silent about the presence of Hiraman (PW 3), his brother. Hiraman, the brother of Shridhar claims that he reached to the spot immediately and he noticed his brother was lying on the spot and, therefore, he lifted him and brought to his house. Further, Exh.13 is completely silent about the presence of Hiraman (PW 3), his brother. Hiraman, the brother of Shridhar claims that he reached to the spot immediately and he noticed his brother was lying on the spot and, therefore, he lifted him and brought to his house. According to the prosecution, the incident has occurred in the noontime, whereas the FIR was lodged in the night. Hiraman could have easily filed the report against the accused persons. In absence of the presence being mentioned of Hiraman, the Court should not readily accept the evidence of Hiraman that he was on the spot at the time of assault being made on his brother Shridhar. 8. By now, the law is well-settled in respect of the appeal against acquittal. Merely because, the other view is possible that itself is not sufficient for the Appellate Court to record a different finding that though the Appellate Court has full power to re-appreciate the entire prosecution case. For exercising the appellate power in the Appeal against acquittal the judgment appealed against, has to be perverse one or the view taken by the Court below is impermissible on the basis of the evidence that is brought on record. In my view, the learned Magistrate of the Court below has correctly appreciated the facts brought on record by the prosecution. Further, the learned APP has fairly stated that there is no perversity in the judgment of acquittal. On re-appreciation of the entire prosecution case, I am of the view that, nothing is brought on record to upset the finding and order of acquittal passed by the learned Magistrate. Consequently, the Appeal fails and is dismissed.