Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1313 (HP)

State of Himachal Pradesh v. Rakesh Kumar

2014-09-19

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. The instant appeal, is, directed by the State, against the impugned judgment, rendered on 16.1.2008, by the learned Sessions Judge, Bilaspur, in, Sessions trial No. 32 of 2004, whereby, the learned trial Court acquitted the accused/respondents for theirs having committed offence punishable under Sections 307, 325, 323, 365 read with Section 34 IPC. 2. Brief facts of the case, are, that, in the year 2002, the complainant was the second driver on truck No. HPU-1505, of which, one Shri Baldev Singh was the first driver. On 26.3.2002 the complainant had brought bricks for the construction of his house, which he unloaded at about 4.00 p.m. near his house. Thereafter he took the truck, in order to bring sand from Galamor (Beri) situated near his house. In the truck, Baldev Singh, his father and brother Dev Raj were also sitting. When the truck was fully loaded with sand, a jeep bearing registration Number HP-24-A 762, came there at about 9.00 p.m. and its occupants asked the complainant through Baldev Singh to come to them. Upon this, the complainant went to the jeep, where he was forcibly dragged in it, by the accused persons. Thereafter the accused persons asked the jeep driver to drive it, and after some distance, the accused asked the complainant as to why he remains with one Shri Virender and started beating him with fist and leg blows. Accused Ranjit Singh has shown to him a knife and threatened him that he would be killed. The owner of the Jeep, Girdhari Lal was also occupying the front seat of the jeep. The accused threw the complainant from the moving jeep near the house of one Shri Kanshi Ram, as a result of which, his left leg got fractured and he also sustained injuries on right foot. Thereafter the accused persons again came to the place where the complainant had been thrown and gave him beatings with fist and leg blows. On raising the alarm by the complainant, accused ran away. The complainant by dragging himself reached the courtyard of one Shri Kanshi Ram. In the meantime, his father and Devi Ram also reached there and took him to the Zonal Hospital Bilaspur. Zonal Hospital Bilaspur intimated the police Station, Sadar of the complainant having admitted in hospital in an injured condition. The complainant by dragging himself reached the courtyard of one Shri Kanshi Ram. In the meantime, his father and Devi Ram also reached there and took him to the Zonal Hospital Bilaspur. Zonal Hospital Bilaspur intimated the police Station, Sadar of the complainant having admitted in hospital in an injured condition. On receipt of intimation, ASI Krishan Chand alongwith HHC Om Prakash rushed to the hospital and recorded the statement of complainant under Section 154 Cr.P.C. During the Course of investigation, site plan of the occurrence was prepared and jeep was taken into possession. Blood stained pant of the complainant was also taken into possession besides a knife, which had been produced by accused Ranjit Singh, after getting its sketch prepared. On conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court. 3. The accused were charged, for, theirs having committed offence punishable under Sections 307, 325, 323, 365 read with Section 34 IPC, by the learned trial Court, to, which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statements of accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. They did not choose to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused. 6. The State of H.P., is, aggrieved by the judgment of acquittal, recorded by the learned trial Court, in, favour of the accused/respondents. The Learned Additional Advocate General has concertedly, and, vigorously contended, that, the findings of acquittal, recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of conviction, and, concomitantly an appropriate sentence, be also imposed upon the accused/respondents. 7. Hence, he contends that the findings of acquittal, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of conviction, and, concomitantly an appropriate sentence, be also imposed upon the accused/respondents. 7. On the other hand, the learned defence counsel, has, with considerable force and vigour, contended that the findings of acquittal, recorded by the Court below, are, based on a mature and balanced appreciation of evidence on record, and, do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The first witness, who stepped into the witness box, in, proof of the prosecution case, is, PW-1, Prakash Chand, who deposes that he is working as second Driver in truck bearing registration No. HP-11-1505. Baldev has been deposed to be the first driver of the aforesaid vehicle. He deposes that on 26.3.2002 bricks were loaded from Ropar to Changer Bhajaun and the same was unloaded in the evening at about 4.00 p.m. near his house. He further deposes that thereafter at Gala Mor the sand was to be loaded in the truck. His father Dhanu Ram, brother Dev Raj and Baldev Singh, the first driver were deposed to be present with him in the truck. After one hour, Baldev and Prakash have been deposed to have left for Deoth side and have returned to the place where the sand was loaded in the truck, after one and a half hours. At about 9 in the evening a vehicle bearing registration No. HP-24A-762 came from deoth side. The said vehicle was deposed to have been driven by Bittu. He deposes that owner of the vehicle Girdhari Lal and Bittu were also the occupants of the vehicle. Roki and Ranjit, present in the court, have been deposed to have occupied the vehicle bearing registration No. HP-24A-762. He further deposes that he was called by Baldev, truck driver, upon which he went near the vehicle. Roki and Ranjit have been deposed to have forcibly dragged him inside the vehicle and taken him in the jeep towards Deoth and started giving beatings to him with fist and leg blows on the pretext as to why he had been playing Dandi Dance with Virender. Roki and Ranjit have been deposed to have forcibly dragged him inside the vehicle and taken him in the jeep towards Deoth and started giving beatings to him with fist and leg blows on the pretext as to why he had been playing Dandi Dance with Virender. Accused Ranjit is stated to have been shown a knife to him and threatened him to do away with his life. He further deposes that he has been thrown out from the moving jeep near the house of Kanshi Ram. In sequel thereto, his leg got fractured. He deposes that the accused came to that place and again gave beatings to him. On raising alarm, the accused persons ran away from the courtyard of Kanshi Ram. Kanshi Ram has been deposed to have taken him to the hospital, where his statement under Section 154 Cr.P.C comprised in Ex. PW-1/A was got recorded, which bears his signatures. The police also took into possession his blood stained pant Ex. P-1 under memo Ex. PW-1/B. He has recognised the knife with which he was threatened by the accused. In his cross-examination, he admitted it to be correct that he has no personal enmity with the accused and that for this reason, there was no reason for them to have taken away his life, when he was allegedly thrown from the jeep, at that time when its speed was 60 kms per hour. He denied that a false case has been foisted against the accused at the instance of one Shri Devi Ram, Up Pradhan who had contested the election of Gram Panchayat for the post of Up-pradhan against accused Rakesh Kumar. 10. PW-2, Dhanu Ram, father of the complainant, has supported the fact that the accused had taken his son in a jeep towards the Deoth side from the place where they were loading sand in the truck. He further deposes that after about one hour, he was told by Shri Prakash Chand of village Karyana Ghati that his son was lying near the house of Kanshi Ram in an injured condition. On this information, he went there and found his son with fractured leg and foot. He further deposes that his son was taken to the hospital for medical treatment. He further deposes that during investigation, blood stained pant Ex. P-1 of the complainant was taken into possession. On this information, he went there and found his son with fractured leg and foot. He further deposes that his son was taken to the hospital for medical treatment. He further deposes that during investigation, blood stained pant Ex. P-1 of the complainant was taken into possession. In his cross-examination, he deposed that Shri Prakash Chand resident of Karyana was also one of the occupants of the jeep at the relevant time. 11. PW-3 Kanshi Ram deposes that about five years ago, at night, he heard the cries of the complainant, who was lying in his courtyard in an injured condition and blood was oozing from his leg. He further deposes that at that time the complainant did not disclose to him as to how his leg got fractured. He further deposes that the people from the village were also assembled in his Court-yard and complainant was taken to the Zonal Hospital Bilaspur. He further deposes that the complainant did not utter anything about the accused at that time. He was declared hostile. Learned PP requested the Court to cross-examine this witness. On his being permitted by the Court, this witness was cross-examined. During the course of his cross-examination, he admitted that his statement was recorded by the police. In his cross-examination by the learned defence counsel, he feigns ignorance as to how and under what circumstances, the complainant sustained injuries and fracture on his person. 12. PW-4 Dr. A.K Sharma, deposes that he was posted as Medical Officer in Zonal Hospital, Bilaspur in the year 2002. He further deposes that he had medically examined the complainant. He deposes that complainant was brought in the hospital by the police with alleged history of fight. In his opinion, injuries sustained by the complainant were grievous in nature and can be caused if a person is thrown out from a moving vehicle on a hard surface and with the fist blows. The weapon used was blunt and probable duration of injures was within 6 hours. MLC comprised in Ex. PW-4/A is deposed to have been issued by him, which bears his signatures. 13. PW-5 Dr. D Bhangal deposes that on examination of X-Ray of the complainant, he found that there was evidence of fresh fracture of base of 5th Mata-tarsal bone and fresh fracture of shafts of both bones left tibia and fibula. MLC comprised in Ex. PW-4/A is deposed to have been issued by him, which bears his signatures. 13. PW-5 Dr. D Bhangal deposes that on examination of X-Ray of the complainant, he found that there was evidence of fresh fracture of base of 5th Mata-tarsal bone and fresh fracture of shafts of both bones left tibia and fibula. He further deposes that he has issued report comprised in Ex. PW-5/A, which bears his signatures. 14. PW-6 Tarsem Kumar deposes that he is an agriculturist and jeep bearing registration No. HP24-A-0762 is in the name of his father. Bittu is deposed to be the driver of jeep at the relevant time. He further deposes that in the year 2002/2003 he was traveling in the jeep in which 2/3 persons were also sitting, one was Ranjit and another was Rocky and third person was not known to him. He further deposes that they went towards Bhajoon where the truck was parked and the sand was in process of loading in the said truck. He further deposes that they stayed there for some time and then another person sat in the jeep, whose name is Prakash Chand. He further deposes that then they came near to the house of Chet Ram and they all got down there. He further deposes that thereafter he did not know what has happened. He was declared hostile and on being permitted by the Court he was cross-examined. During the course of his cross-examination he admitted that accused persons were sitting in the jeep on 26.3.2002 at about 8.00 p.m., but denied that they had any conversation with the complainant in his presence. He further admitted that his statement was recorded by the police on 27.3.2002 and the same was read over and explained to him. He further deposes that the accused persons are known to him. He has stated it to be incorrect that the accused persons had forcibly put the complainant inside the jeep and started giving beatings to him with fist and leg blows and near the house of Kanshi Ram, the complainant had been thrown out from the moving jeep. He also denied that accused Ranjit Singh had taken out a knife and threatened the complainant with dire consequences. He further denied the portion A to A of his statement made before the Police. He also denied that accused Ranjit Singh had taken out a knife and threatened the complainant with dire consequences. He further denied the portion A to A of his statement made before the Police. In his cross-examination by the learned defence counsel, he deposed that no quarrel had taken place between the accused and the complainant in his presence and after dropping the complainant, accused and one another person, had gone to their houses. 15. PW-7 Shri Dev Raj deposes that he is an agriculturist. He deposes that he was constructing a house at the relevant time when on 26.3.2002, the complainant had brought bricks in his truck to his house, which they had un-loaded. He further deposes that he alongwith Dhanu Ram, father of the complainant and the complainant himself accompanied in the said truck to Galamore for loading the concrete. He further deposes that at that time a jeep had stopped near the truck and the accused who were sitting in it had called the complainant through Shri Baldev and made the complainant to sit in the jeep and took him away. He further deposes that thereafter Prakash Chand son of Shri Krishnu told that the accused had thrown the complainant from the moving jeep. He further deposes that then they went to the place where the complainant was lying in an injured condition and the complainant was then taken to the hospital for treatment. During the course of his cross-examination he admitted that owner of the truck, Prakash Chand and the complainant had boarded the jeep and left the place where the truck was being loaded with Bajri. 16. PW-8 HC Prakash Chand deposes that he was posted as MC in Police Sadar, Bilaspur in the year 2002. He deposes that he was associated in the investigation. He further deposes that on 2.4.2002 Ranjit Singh accused had come to the police station and handed over him a knife. Memo Ex. PW-8/A was prepared and was signed by him besides him it was also signed by C. Rajesh Kumar and accused Ranjit Singh. He further deposes that knife was put into a parcel and was sealed and prior to its sealing, khaka was prepared which is Ex. PW-8/B, which bears his signatures as well as of C Rajesh Kumar. 17. PW-9 Shri Narinder Kumar deposes that he was the driver of the jeep in the year 2002. He further deposes that knife was put into a parcel and was sealed and prior to its sealing, khaka was prepared which is Ex. PW-8/B, which bears his signatures as well as of C Rajesh Kumar. 17. PW-9 Shri Narinder Kumar deposes that he was the driver of the jeep in the year 2002. He further deposes that he does not remember the date and month, but it was year 2002, he was going to Kali in the jeep in which Jagat Ram and his wife were also sitting. He further deposes that on having reached Kali, he dropped them there and while returning there was a truck parked two kilometers away from Kali towards Bilaspur, which was being loaded with Bajri and sand. He further deposes that there his jeep was stopped and two persons whose names he does not remember boarded the jeep. He further deposes that in his jeep owner of the jeep Tarsem Lal alongwith two other persons were also sitting from village Kahli. He further deposes that the accused present in the Court are not the same persons, who barded the jeep at Gala More. He was declared hostile and on being permitted by the Court he was cross-examined. During the course of his cross-examination he deposes that his statement was recorded by the Police. He denied that the accused persons were traveling in the jeep. He further denied that the complainant had been forcibly dragged inside the jeep by the accused and that he was given beatings by them. He further denied that near the house of Kanshi Ram the accused kicked out the complainant from the moving jeep and that by alighting from it, started giving him beatings to him on the road. 18. PW-10 ASI Krishan Chand deposes that he had gone to Zonal Hospital, Bilaspur on 27.3.2002 to verify the report which was entered in the daily diary No. 47/02. He deposes that in the hospital he recorded the statement of the complainant comprised in Ex. PW-1/A, which was sent to the police Station for registration of the case. He further deposes that an application Ex. PW-10/B was moved for medical examination of the complainant. MLC of complainant comprised in Ex. PW-4/A was obtained. He further deposes that at the instance of father of the complainant, he prepared the spot map comprised in Ex. PW-1/A, which was sent to the police Station for registration of the case. He further deposes that an application Ex. PW-10/B was moved for medical examination of the complainant. MLC of complainant comprised in Ex. PW-4/A was obtained. He further deposes that at the instance of father of the complainant, he prepared the spot map comprised in Ex. PW-10/C from where the accused persons had allegedly abducted the complainant. He further deposes that there he had proceeded to the place where Prakash Chand was thrown from the moving jeep near the house of Shri Kanshi Ram and in this regard he prepared the site plan comprised in Ex. PW-10/D. The jeep along with its documents has been deposed to have taken into possession vide memo Ex. PW-3/B. He further deposes that he had recorded the statement of Kanshi Ram comprised in Ex. PW-3/A correctly including its portions from 'A' to 'A' to 'D' to 'D', similarly statements of Tarsem Kumar mark 'Y' Ex. PW-10/E and that of Shri Narender Kumar Ex. PW-10/F were recorded, correctly including their relevant portions. He further deposes that on 28.3.2002 the complainant handed over to him his blood stained pant which was taken into possession vide memo Ex. PW-1/B. He further deposes that knife Ex. P-2 has been deposed to have produced by accused Ranjit Singh, which has been deposed to have taken into possession under memo Ex. PW-8/A and Khaka Ex. PW-8/B was prepared. He denied that the statements of the witnesses were not recorded correctly. 19. The prosecution case has been contended to be firmly anchored upon the testimony of PW-1, the victim/injured who when in square and forthright terms has deposed in tandem with the prosecution version, as such his testimony has been contended to be enjoying probative worth. PW-8/B was prepared. He denied that the statements of the witnesses were not recorded correctly. 19. The prosecution case has been contended to be firmly anchored upon the testimony of PW-1, the victim/injured who when in square and forthright terms has deposed in tandem with the prosecution version, as such his testimony has been contended to be enjoying probative worth. However, even though the testimony of PW-1, does as contended by the learned Additional Advocate General communicate a version in unison with the genesis of the prosecution story, nonetheless given the fact as comprised in the cross-examination of his father and brother of theirs being also present at the apposite stage when the accused purportedly forcibly dragged him to the vehicle occupied by both the accused, yet, the omission on the part of the complainant/injured to attract the attention of his father and brother present at the stage contemporaneous to the occurrence, by raising a loud cry, invites an inference that such omission was occasioned by his rather having acquiesced to occupy the jeep or his having volitionally taken to occupy the jeep in the company of both the accused. The effect of the said omission on the part of the complainant/injured to draw the attention of his father and brother in the manner aforesaid though present at the site of occurrence for eliciting their intervention for dissuading the accused from forcibly dragging him in the jeep, when has been construed to be connoting the acquiescence of or conveying the factum of the injured/victim having volitionally occupied the vehicle along with the accused, its effect get accentuated in the face of PW-2, the father of the complainant having omitted to in his examination-in-chief depose in tandem with PW-1. Further more PW-3 the person who proceeded to the courtyard of his house, upon hearing the cries of the injured and saw blood oozing from his legs, has in his examination-in-chief deposed the fact that the injured-victim at that stage omitted to disclose to him the reasons for his sustaining a fracture of his leg. Further more PW-3 the person who proceeded to the courtyard of his house, upon hearing the cries of the injured and saw blood oozing from his legs, has in his examination-in-chief deposed the fact that the injured-victim at that stage omitted to disclose to him the reasons for his sustaining a fracture of his leg. The effect of the deposition of PW-3 in as much, as it comprises the testimony of the person who first saw the injured victim, in an injured condition and to whom an immediate disclosure on enquiry by PW-3 about the reasons for his sustaining the fracture was to be made, when has deposed that the victim injured was reticent qua the reasons for his having sustained fracture of his leg, voices the fact that, hence, the victim/injured has subsequently invented, in sequel to deep premeditation, a false story for attributing an incriminatory role to the accused, whereas in case a genuine incriminatory role was attributable to the accused then an immediate disclosure qua it ought to have emanated, at the instance of the injured/victim before PW-3, whereas it did not, as a corollary when the victim/injured remained reticent qua the purported incriminatory role of the accused in quick spontaneity of his having sustained fracture of his leg, sequels a forthright inference that the incriminatory role as ultimately attributed by the injured/victim to the accused is seeped in prevarication. 20. The testimony of PW-7 though has been pressed into service by the learned Additional Advocate General to persuade this Court that it comprises evidence of probative worth and potency, however in the face of it, having emanated on a reading of his deposition comprised in his examination-in-chief of a disclosure qua the occurrence having been narrated to him by Prakash S/o Krishnu who however has not been cited as a witness, as such, when he omits to render an eye witness account qua the occurrence, rather unravels an account as revealed to him by Prakash, it comprises hearsay evidence, hence, was discardable as tenably done by the learned trial Court. 21. Preeminently the deposition of PW-9 an eye witness to the occurrence as also a co-occupant of the vehicle, inside which the alleged occurrence took place, as also, from which the accused threw out the victim/injured, has not lent support to the prosecution version. 21. Preeminently the deposition of PW-9 an eye witness to the occurrence as also a co-occupant of the vehicle, inside which the alleged occurrence took place, as also, from which the accused threw out the victim/injured, has not lent support to the prosecution version. The effect of his having omitted to lend support the prosecution case or to the genesis of the occurrence constrains this Court to conclude that, no succor can be derived by the prosecution from the testimony of PW-9. Consequently, when the deposition of PW-9 comprised the best evidence in proof of the prosecution version, his having turned hostile or his having abstained to give impetus to the prosecution version, fillips an inference of the prosecution version coming to be torpedoed, as tenably concluded by the learned trial Court. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor, in as much, as, it having mis-appreciated the evidence on record or omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit inference. 22. In view of above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is affirmed. Record of the learned trial Court be sent back forthwith. Appeal Dismissed.