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Himachal Pradesh High Court · body

2015 DIGILAW 1987 (HP)

State of H. P v. Vikram Singh

2015-12-30

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the judgment rendered on 16.5.2015 by the learned Sessions Judge (Forest), Shimla, H.P. in Sessions trial RBT No. 40-S/7 of 2012/11, whereby the latter Court acquitted the accused/respondents herein (hereinafter referred to as “accused”) for theirs having committed offences punishable under Sections 148, 307, 427 read with Section 149 of Indian Penal Code. 2. The facts of the case are that on 10.8.2008 at about 12.40 a.m. Jagdish Chand, Chaman Lal and Attar Singh were standing near the Bus stand Shimla and were likely to proceed to their houses. 6-7 boys after forming an unlawful assembly and in execution of the common object attacked them with swords. Out of these persons the complainant recognized only Sanjay, who is engaged in the business of traveling and Sonu who is residing towards Boileauganj and was driving a private van. The complainant could not recognize the other accused. He alongwith Chaman Lal, Jagdish and Attar Singh received multiple injuries on their person caused by the boys aforesaid with sharp edged weapon and blunt weapon. C Mahesh Kumar delivered the statement of the complainant at Police Station Sadar and on the basis of which FIR Ex. PW-4/B was registered. Site plan Ex. PW-20/A was prepared and broken glasses of vehicles were taken into possession vide memo Ex. PW-20/B. Dinesh Kumar, injured produced his pant and shirt, which were taken into possession vide memo Ex. PW-14/A. The clothes of Jagdish were also taken into possession vide memo Ex. PW-5/A. Accused Vikram Singh gave a disclosure statement Ex. PW-15/A. On the basis of which police got recovered the weapon of offences i.e sword, base ball stick and two dandas. The aforesaid weapons of offence were taken into possession under memo Ex. PW-15/D. Site plan of place of recovery was also prepared. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. 3. The trial Court charged the accused for theirs having committed offence punishable under Sections 148, 307, 427 readwith Section 149 of Indian Penal Code, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 23 witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. 4. In order to prove its case, the prosecution examined as many as 23 witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. On closure of proceedings under Section 313 Cr.P.C the accused were given an opportunity to adduce evidence in defence which they refused to avail. 5. The appellant-State is aggrieved by the judgment of acquittal recorded by the learned trial Court. Mr. M.A khan, learned Additional Advocate General has concerted to vigorously contend before this Court 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 mis-appreciation of material on record. Hence, he contends qua findings of acquittal being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. The injured Attar Singh (PW-16), Jagdish Chand (PW-19) besides eye witnesses Dan Singh (PW-12) and Madan Lal (PW-18) did not lend support to the prosecution version. However, despite support standing not lent by the aforesaid to the prosecution case, the complainant Dinesh Kumar (PW14) in his examination-in-chief has deposed in tandem with the version qua the incident comprised in FIR (Ex. PW-4/B). Even though he hence proved by identifying them in Court the factum of presence of accused Vikram @ Sonu and Sanjay at the site of occurrence arising from the factum of theirs being known to him besides when yet the names of other accused standing un-recited by him in the FIR his identifying them in Court with his carrying in his mind an indelible impression of their characteristic features whereupon the prosecution concerts to impute strength to its version. Nonetheless with PW-14 in his cross-examination resiling from the recitals recorded in the FIR of accused Vikram @ Sonu holding sword in his hands and other accused wielding dandas, afflicts the role attributed in the FIR to accused Vikram @ Sonu besides to other co- accused with a malady of inter-se contradictions rendering the factum aforesaid standing de-established besides not proven. With the aforesaid emanation in the cross-examination of PW-14 qua his denying the ascribing by him in the FIR any role to accused Vikram @ Sonu of his wielding a sword in his hands and to other accused in as much as theirs wielding dandas also erodes the probative effect of his deposing in his examination-in-chief in tandem with the propagation in the FIR with an attribution therein of an incriminatory role aforesaid to accused Vikram @ Sonu and to other co-accused, besides belittles his creditworthiness. Consequently, with the pivotal fact of the incriminatory role constituted by PW-14 in the FIR besides in his examination-in-chief against accused Vikram @ Sonu and qua other coaccused standing discredited, any identification by PW-14 of accused Vikram @ Sonu and Sanjay in Court and of other co-accused is legally un-worthwhile. In aftermath, his testimony is discardable for reliance thereupon being placed for proving the guilt of the accused qua the incriminatory role ascribed respectively to them by him. Even though, the holding of a Test Identification Parade is not imperative yet especially given the factum of the ill-fated occurrence having taken place during night time besides with the testimony of PW-14 qua ascription by him of an inculpatory role to accused Vikram @ Sonu and Sanjay in his examination-in-chief whereat they stood identified besides to other co-accused who also stood identified by him in Court, standing for reasons aforesaid discredited, its holding does assume significance for uncovering and unmasking the identity of the accused. With the ascription of an inculpatory role to accused Vikram @ Sonu and accused Sanjay besides to other accused standing shrouded in an aura of doubt, concomitantly, the non-holding of a Test Identification Parade by the Investigating Officer for unearthing the identify of the assailants renders the identification in Court by PW-14 of accused Vikram @ Sonu and Sanjay besides thereat of other accused to be entirely surmisal and conjectural whereupon no reliance is to be imputed by this Court nor the identification by PW-14 in Court of accused Vikram @ Sonu and Sanjay besides of other co-accused attains any formidable evidentiary conclusivity. 7. Be that as it may with this Court disimputing credence to the testimony of PW-14, the testimony of PW-23 who has corroborated the testimony qua the occurrence rendered by PW-14 has likewise got to be closely evaluated for discerning its veracity. 7. Be that as it may with this Court disimputing credence to the testimony of PW-14, the testimony of PW-23 who has corroborated the testimony qua the occurrence rendered by PW-14 has likewise got to be closely evaluated for discerning its veracity. The deposition qua the occurrence of PW-23 stands effacement arising from the factum of PW- 14 the victim of the offence in his deposition not unveling therein the prime fact qua the presence of PW-23 at the site of occurrence. In sequel, his presence at the site of occurrence is an invention on the part of the Investigating Officer. Hence credibility if any of his testimony suffers impairment. Coagulatedly, with injured Attar Singh and Jagdish Chand besides eye witnesses Dan Singh (PW-12) and Madan Lal (PW-18) not lending support to the prosecution case besides with the testimonies of PW-14 and PW-23 standing discredited, the entire vigor of the prosecution case gets sapped. 8. Preponderantly, when the further factum of the naming by PW-14 in the FIR accused Sanjay stood aroused from his standing engaged in the business of traveling whereas the naming therein of accused Vikram @ Sonu stood aroused from the factum of his residing towards Boileauganj stands dispelled by PW-20, the Investigating Officer, who rather has deposed of no evidence during his holding investigations qua the offences constituted in the FIR standing unearthed in depiction of the factum of accused Sanjay standing engaged in traveling business besides accused Vikram also carrying an alias of Sonu. In sequel, the occurrence of the names of the aforesaid in the FIR besides their identification in Court by PW-14 remains unconnected with the identity of accused Sanjay and Vikram. As a corollary, the names of the aforesaid in the FIR besides their identification in Court by PW-14 is entirely conjectural and surmisal, necessarily with pervasive doubt seeping qua the identity of the accused aforesaid, benefit thereof ought to stand afforded to them. 9. Preponderantly the recovery of weapon of offences i.e. sword, base ball stick and two dandas under memo PW-15/D stands vitiated in as much as PW-15 Baldev Singh, a witness to disclosure memo PW- 15/A, in his deposition divulging of weapons of offence standing preceding the recording of the disclosure statement aforesaid located in the police station. The prime factum as stands unveiled by PW-15 a witness to disclosure statement Ex. The prime factum as stands unveiled by PW-15 a witness to disclosure statement Ex. PW-15/A of weapons of offence respectively recovered at the instance of the accused under memo Ex.PW-15/D by the Investigating Officer standing recovered preceding the preparation of disclosure memo Ex.PW-15/A renders the recovery of weapons of offence under memo Ex.PW-15/D to be in transgression besides in derogation of the mandate of law, of recoveries being a sequel or in succession to preparation of a disclosure statement than as has contrarily occurred in the instant case. The recovery of weapons of offence under an apposite memo prepared in regard thereto to attain formidable vigor, validation besides legal efficacy were enjoined to stand effectuated in succession to preparation of a disclosure memo comprised in Ex.PW-15/A rather than preceding its preparation as stands manifested by the deposition of PW-15. Contrarily when for reiteration PW-15 unveils the prime factum of its preparation preceding the recovery of weapons of offence aforesaid under memo aforesaid from the purported place of their hiding renders the depictions therein to be false invented or engineered, whereupon no reliance can be imputed. In sequel, weapons of offence remain unconnected with the accused. 10. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused. The appreciation of evidence by the learned trial Court does not suffer from any infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of acquittal recorded by the learned trial Court do not merit interference. 11. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is maintained and affirmed.