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2015 DIGILAW 1899 (HP)

State of Himachal Pradesh v. Vinod Kumar

2015-12-16

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment of the learned Sessions Judge, Una, District Una, Himachal Pradesh, rendered on 15.09.2008, in Session Trial No.3 of 2007, whereby the learned trial Court acquitted the accused/respondent No.1, Vinod Kumar for his having committed offences punishable under Sections 323 and 115 of the Indian Penal Code, besides also acquitted accused/respondent No.2, Rajan Kumar for his having committed offences punishable under Sections 324 and 307 of the Indian Penal Code. 2. The facts relevant to adjudicate the instant appeal are that on 7.10.2003, Ajay Kalia informed the Police Post, Chintpurni on telephone at about 8.30 AM that he and his brother Anil Kalia have been stabbed by accused Vinod Kumar and at present they are under treatment at CHC, Chintpurni. On this S.I. Gopal Dass along with HC Mohinder Singh and other police officials went to CHC, Chintpurni, where he recorded the statement of injured Anil Kalia under Section 154 Cr.P.C, wherein he reported that he is priest in Chintpurni Mata Mandir and on that day it was his and that of accused Vinod Kumar’s turn to perform Puja at the Mandir. In the morning at 8 AM on the relevant day when he was taking tea in the Lakkar Bazar, accused Vinod Kumar came there and asked that he indulges in cheating at his turn in the Mandir and accused Vinod Kumar slapped him and after snatching the glass from his hands, accused Vinod Kumar inflicted injury on his head with the said glass and called his son Rajan (accused No.2). Anil Kalia also called his brother Ajay so that the matter could be compromised, but on his arrival Rajan (accused No.2) inflicted knife blows on both of them. Anil Kalia stated that the accused Rajan inflicted knife blow on his abdomen and the material from the abdomen protruded. He stated that they were rescued by Vinod @ Guddu and his servant Ranjit. Thereafter accused Rajan fled away from the scene along with dagger and Anil Kalia was brought to the hospital by his brother Ajay. On this report FIR Ext.PW-10/B was registered at Police Station, Amb. Both the injured were got medically examined and their MLCs were obtained. Both the accused were arrested, who confessed their guilt vide their disclosure statements. Thereafter accused Rajan fled away from the scene along with dagger and Anil Kalia was brought to the hospital by his brother Ajay. On this report FIR Ext.PW-10/B was registered at Police Station, Amb. Both the injured were got medically examined and their MLCs were obtained. Both the accused were arrested, who confessed their guilt vide their disclosure statements. On demarcation of accused Rajan, weapon of offence was recovered and was sealed in a parcel and taken into possession vide memo Ext.PW-5/B. Site plan of the occurrence was prepared and scooter in question was also taken into possession. Treatment summary in respect of injured Anil Kalia was obtained from PGI, Chandigarh. Statements of witnesses were recorded. On conclusion of investigation, the challan was prepared and presented in the Court and accused were produced to face trial. 3. Accused/respondent No.1, Vinod Kumar stood charged by the learned trial Court for his having committed offences punishable under Section 323 and 115 of the Indian Penal Code, whereas accused/respondent No.2, Rajan Kumar stood charged by the learned trial Court for his having committed offences punishable under Sections 324 and 307 of the Indian Penal Code. In proof of the prosecution case, the prosecution examined 15 witnesses. On conclusion of the recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court, wherein both the accused claimed innocence and pleaded false implication. On opportunity standing afforded by the learned trial Court to both the accused to adduce defence evidence, only accused/ respondent No.1, Vinod Kumar chose to avail it. Accused/respondent No.1, Vinod Kumar examined two witnesses in his defence. 4. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of both the accused/respondents. 5. The appellant/State stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Deputy Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross misappreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. On the other hand, the learned counsel for the respondents has contended with considerable force and vigour qua the findings of acquittal recorded by the Court below being based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference, rather meriting vindication. 7. 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. 8. The accused Rajan Kumar is alleged to with dagger recovered under memo Ext.PW-5/B delivered/administered a blow on the head of Anil Kalia. Accused Vinod Kumar is alleged to have abetted accused Rajan Kumar in the latter’s act of delivering a blow with dagger on the head of Anil Kalia. Accused Vinod Kumar is also alleged to have slapped Anil Kalia, hence is alleged to have committed an offence punishable under Section 323 of the Indian Penal Code. 9. The victim of the offence Anil Kalia was subjected to medical examination by PW-1, Dr. Indu Bhardwaj, who during the course of her deposition has proved Ext.PW-1/B, which constitutes the MLC prepared by her in sequel to her subjecting Anil Kalia to medical examination. PW-1 in her deposition on oath has been unequivocal besides categorical qua the injuries recorded in Ext.PW-1/B being dangerous to life. The opinion formed by PW-1 qua the injuries occurring on the person of victim Anil Kalia as stands recorded in Ext.PW-1/B, being dangerous to life finds its existence in Ext.PW-1/A. However, on the mere strength of the deposition of PW-1 with the afore-referred unfoldments therein, the prosecution cannot succeed in its endeavour to prove the allegations constituted against the accused in the charges framed by the learned trial Court against each. The best besides potent evidence to prove the charge against the accused was constituted in the deposition of the victim Anil Kalia. The best besides potent evidence to prove the charge against the accused was constituted in the deposition of the victim Anil Kalia. However, the victim of the offence died on 2nd June, 2006, hence was unavailable for being led into the witness box for proving the genesis of the prosecution case embedded in the FIR Ext.PW-10/B. With the victim of the offence having died subsequent to the ill-fated occurrence, the prosecution was deprived of adducing the best evidence for sustaining its charge against the accused. In the face of demise of the victim of the offence subsequent to the ill-fated occurrence obviously also has rendered unavailable for adduction the best evidence in proof of the contents of the FIR Ext.PW-10/B lodged qua the occurrence by the deceased victim. Given the unavailability of the victim of offence for proving the contents of FIR Ext.PW-10/B lodged qua the occurrence by him obviously a conclusion is formable by this Court of its contents standing not proved. However, the prosecution relies upon the deposition of the younger brother of the victim of the offence i.e. PW-3 for proving the genesis of the occurrence. The younger brother of the deceased complainant Anil Kalia though in his recorded deposition on oath has rendered therein a version in consonance with the version thereof constituted in the FIR Ext.PW-10/B, nonetheless his testimony is neither sound nor of any probative worth, besides is legally inefficacious, arising from the factum of: (a) his being an interested witness. Even though the factum of his interestedness may not be a sufficient ground for discarding his testimony, nonetheless his interestedness may throw overboard the prosecution version, especially in the face of his deposing in his deposition comprised in his cross examination of his shop standing located at a place wherefrom the ill-fated occurrence was not visible. Given the aforesaid emanation in his deposition comprised in his cross examination qua the site of occurrence being not visible from his shop, renders the factum of his having witnessed it to be a conjuration besides an invention on his part. Necessarily then with his having not witnessed the occurrence his narration in his examination in chief purveying therein an ocular version qua the occurrence stands belittled besides loses its creditworthiness. In sequel his testimony is discardable. Necessarily then with his having not witnessed the occurrence his narration in his examination in chief purveying therein an ocular version qua the occurrence stands belittled besides loses its creditworthiness. In sequel his testimony is discardable. In aftermath, no dependence can be made by this Court qua his version qua the ill-fated occurrence comprised in his examination in chief; (b) the occurrence in his deposition comprised in his examination in chief of it having stood witnessed by Vinod Kumar @ Guddu. However, the factum of the aforesaid eye witness to the occurrence having resiled from his previous statement recorded under Section 161 Cr.P.C. erodes the genesis of the prosecution version; (c) PW-3 in his cross examination has also made a disclosure therein of the ill-fated occurrence standing witnessed by shopkeepers owning shops in the vicinity of the site of occurrence, yet the shopkeepers owning shops adjoining the site of occurrence stood not cited as prosecution witnesses for facilitating theirs unfolding during their depositions the true genesis of the prosecution case. In sequel, the omissions aforesaid on the part of the prosecution appear to germinate from its endeavour to suppress the truth qua the occurrence which otherwise would have stood unraveled on the shopkeepers owning shops adjoining the site of occurrence and who witnessed it stepping into the witness box. In aftermath, it appears that the prosecution has concerted to by relying upon the interested testimony of PW-3 project a twisted or contorted version qua the genesis of the prosecution occurrence, which cannot be imputed credence by this Court. Moreover, the ill-fated occurrence took place in the tea shop of one Ashwani Kumar, nonetheless, he was neither cited as a prosecution witness nor was led into the witness box. The factum of his neither standing cited as a witness nor hence standing examined as a prosecution witness, precluded him to render a truthful version qua the ill-fated occurrence wherefrom an inference stands galvanized of the prosecution benumbing the upsurging of best evidence qua the occurrence. Cumulatively, hence the inference aforesaid of the prosecution benumbing as well as suppressing the unveiling of truth qua the occurrence dismantles the entire edifice of the prosecution version rendering it to be incredible besides its being not amenable to implicit sanctity being imputed thereto by this Court. 10. Cumulatively, hence the inference aforesaid of the prosecution benumbing as well as suppressing the unveiling of truth qua the occurrence dismantles the entire edifice of the prosecution version rendering it to be incredible besides its being not amenable to implicit sanctity being imputed thereto by this Court. 10. The user of weapon of offence i.e. dagger by co-accused Rajan Kumar, who with its purported user inflicted injuries on the head of victim Anil Kalia stands not efficaciously proven vis-à-vis co-accused Rajan Kumar nor he stands connected with his either wielding it or using it especially in the face of witnesses PW-5 and PW-14 to recovery memo Ext.PW- 5/B whereunder it stood recovered, not supporting the prosecution case qua its recovery standing effected in their respective presence at the instance of the accused by the Investigating Officer. Consequently, with the witnesses to recovery memo Ext.PW-5/B not proving the factum of effectuation of recovery of dagger in their respective presence at the instance of the accused by the Investigating Officer engenders an inference of its recovery at the purported instance of the accused by the Investigating Officer being in its entirety a well engineered contrivance besides an invention on the part of the Investigating Officer. Necessarily then no reliance is to be imputed to the factum of recovery of dagger under memo Ext.PW-5/B. Cumulatively, with the prosecution, hence not succeeding in connecting co-accused Rajan Kumar with dagger recovered under memo Ext.PW-5/B, besides obviously not succeeding in connecting him with his wielding it or his delivering a blow with it on the head of the victim renders suspect the prosecution version of co-accused Rajan Kumar with his purportedly wielding it his delivering its blow on the head of the victim. 11. The summom bonum of the above discussion is of the aforesaid discrepant evidence qua the guilt of the accused making pervasive and deep in roads qua the veracity of the prosecution version rendering it to be suspect. Consequently, the benefit of doubt ought to go to the accused. 12. 11. The summom bonum of the above discussion is of the aforesaid discrepant evidence qua the guilt of the accused making pervasive and deep in roads qua the veracity of the prosecution version rendering it to be suspect. Consequently, the benefit of doubt ought to go to the accused. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 13. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned trial Court be sent back forthwith.