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Himachal Pradesh High Court · body

2014 DIGILAW 1397 (HP)

Jeet Ram v. State of H. P.

2014-10-10

SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant criminal revision is directed against the impugned judgment rendered on 04.07.2007, by the learned Additional Sessions Judge, Fast Track Court, Shimla, H.P in Cr. Appeal No. 70-S/10 of 2004/2002, whereby, the learned Additional Sessions Judge affirmed the conclusions/findings recorded by the learned Additional Chief Judicial Magistrate, Court No.1, Shimla, H.P. in case No.117/2 of 2001, of 2.12.2002 whereby the petitioner/accused was convicted and sentenced as under: Sr. No. Offence Sentence 1. 325, IPC To undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default of payment of fine amount to further undergo rigorous imprisonment for a period of three months. 2. 324, IPC To undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine amount to further undergo simple imprisonment for a period of one month. 3. 451, IPC To undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine amount to further undergo simple imprisonment for a period of one month. 2. Brief facts of the case are that on 2.9.2001, complainant/victim Rajesh Verma along with his brother Praveen and Neeraj were sitting in the verandah of his house. At about 9.00 p.m., accused while wielding a sickle came there and suddenly inflicted its blow on the right foot of the complainant Rajesh Verma. When Neeraj and Praveen tried to save the complainant from the clutches of the accused, the latter gave a darat blow on the head of Neeraj and administered beatings to Praveen. Thereafter the accused fled away from the spot. The accused is also alleged to have threatened them with their lives. The matter was reported to the police by the complainant. The police conducted the investigation in the case and during the course of investigation, the injured were sent to hospital for their medical examination. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for his having committed an offence punishable under Sections 451, 325, 324 and 506 of the IPC, by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 9 witnesses. 4. Accused was charged for his having committed an offence punishable under Sections 451, 325, 324 and 506 of the IPC, by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and no evidence was led by him in defence. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. In appeal preferred by the accused/petitioner, the learned Additional Sessions Judge affirmed the findings/conclusions recorded by the learned trial Court. 7. The accused/petitioner is aggrieved by the judgment of conviction recorded by the learned trial Court and affirmed by the learned Additional Sessions Judge. The learned defence counsel has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court and affirmed by the learned Additional Sessions Judge are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation and non appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its revisional jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the learned trial Court below and affirmed by the learned Additional Sessions Judge are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. 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. 10. Both the learned Courts below have recorded findings of conviction against the accused/petitioner. This Court would interfere with the findings recorded by both the learned Courts below only if, in the event of an incisive perusal of the record, it divulges the fact of both the learned Courts below having omitted to take into consideration the germane and relevant material and such omission rendering the impugned judgment of conviction recorded by the learned Courts below to be ingrained with the vice of material irregularity and legal impropriety. While proceeding to discern the record for disinterring the fact of whether both the learned Courts below have omitted to pay reverence to the germane and apposite material personifying the factum of the prosecution case being vitiated, this Court deems it fit and appropriate to refer to the factum of the manner of the recovery of weapon of offence under memo Ex.PW1/C. For the reasons recorded hereainafter, this Court is constrained to conclude that the manner of recovery of weapon of offence i.e. darat, Ex. P-1, under recovery memo Ex.PW1/C is both tainted as well as legally inefficacious. Hence, its legal inefficacy in connecting the accused with the commission of offence having been omitted to be accorded adequate weightage by the learned Court below renders the impugned judgment to be acquiring a tinge of illegality. (a) PW-1 Rajesh Verma, the witness to recovery memo Ex.PW1/C having in its cross-examination feigned ignorance qua the place of preparation of recovery memo Ex.PW1/C, conveys the factum of his being not present at the time of either its preparation or at the time contemporaneous to the effectuation of recovery of the weapon of offence under it, at the instance of accused. While coming to form the above conclusion, the obvious deduction is that the recovery memo Ex.PW1/C was not prepared at the place recited in it nor hence the weapon of offence purportedly recovered at the instance of the accused, was recovered at the latter’s instance from the place as recited in it, rather its recovery is a mere invention and concoction and it does not carry probative worth in marking the fact of it, hence, being used by the accused in the commission of alleged offence. What heightens the fact of recovery memo Ex.PW1/C qua the weapon of offence purportedly used by the accused/revisionist in the commission of offence being an invention and concoction, as such, carrying no legal efficacy and probative worth, is comprised in the further communication by PW-1 in the later part of his cross-examination of the entire proceedings including the preparation of the recovery memo Ex.PW1/C having been carried out in the police station. In aftermath, a firm and invincible conclusion which can be formed is that the weapon of offence purportedly used by the accused in the commission of offence and which was purportedly recovered under recovery memo Ex.PW1/C was not as depicted in it so recovered. In aftermath, a firm and invincible conclusion which can be formed is that the weapon of offence purportedly used by the accused in the commission of offence and which was purportedly recovered under recovery memo Ex.PW1/C was not as depicted in it so recovered. The concomitant ensuing inference, hence, is that the weapon of offence appears to have been foisted upon the accused even when it was neither used nor wielded by the accused/revisionist in the commission of offence. Consequently, with the recovery of the weapon of offence under an invented recovery memo qua its recovery comprised in Ex.PW1/C, renders the prosecution case to be gripped with the vice of falsity. What accentuates and heightens the effect of the inference hereinabove formed by this Court is comprised in the admission of PW-2, the other witness to the recovery memo Ex.PW1/C qua the factum of his being apprised about the recovery of ‘darat’ by the police in the police station. The aforesaid admission too fosters the inference that the recovery memo Ex.PW1/C acquires no legal sinew and vigour. In aftermath, the accused/revisionist remains un-connected with the fact of both his wielding it and using it. Apart from the aforesaid infirmities gripping the prosecution case, the omission on the part of the prosecution to associate an independent witness to the occurrence inasmuch as one Shri Naresh Kumar, who is conveyed by PW-1 in his cross-examination to have at the apposite stage stepped out from his house, is also a vital omission, inasmuch as in the absence of his being associated in the investigation and concomitantly his not having come to be examined as a prosecution witness so as to lend an impartisan version to the prosecution case, the smear or taint with which the prosecution version is gripped with on the score aforesaid acquires a magnifying effect. The reason for concluding so is that in case he had been associated and cited as a witness and stepped into the witness box, he could have unraveled a truthful version qua the occurrence. His non association and non citation as well as his non appearance as a witness obviously appears to have been encouraged by the motivation of the Investigating Officer to smother the truth qua the occurrence. His non association and non citation as well as his non appearance as a witness obviously appears to have been encouraged by the motivation of the Investigating Officer to smother the truth qua the occurrence. Obviously, the conclusion which is fostered is of the victims/injured PW-1 and PW-2 having alone been deliberately joined as witnesses to the occurrence by the Investigating Officer only for enabling theirs communicating a partisan and slanted version qua it which version is, hence, both construable to be both uninspiring and untruthful. Moreover, the further omission on the part of the prosecution (a) to send the blood smeared darat for rendition of an opinion by the FSL qua the factum of it bearing the blood of the injured/victim for its hence conveying the factum of its user at the instance of the accused and (b) omission of the prosecution to show the darat, the purported weapon of offence, to the doctor who prepared the MLC qua the victim and injured, for eliciting an opinion from him qua the factum of injuries visible on the person of the injured/victim being possible with its user, are such pre-eminent omissions which construed cumulatively in conjunction with the factum of recovery of darat under recovery memo Ex.PW1/C being legally inefficacious and of no probative value, reinforcingly constrain this Court to conclude that the aforesaid omissions were begotten as the Investigating Officer was carrying out a tainted and slanted investigation. Besides, an inference also flows that the weapon of offence as attributed to the accused in the commission of the offence was, as a matter of fact, not used by him nor also, hence, he perpetrated the assault on the victim/injured. For the reasons stated hereinabove the impugned judgments of the learned Courts below are gripped with the affliction of theirs carrying the taint of omitting to appreciate the material and apposite evidence, concomitantly, such omissions constitute them to be also ingrained with the vice of material irregularity and legal impropriety. 11. For the foregoing reasons, the revision petition is allowed and the judgments of the learned Courts below are setaside. Accused/revisionist is acquitted of the offences charged. Fine amount, if any, deposited by the accused/revisionist, be refunded to him. Bail bonds furnished by the accused/revisionist stand discharged. Records be sent back forthwith.