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Himachal Pradesh High Court · body

2015 DIGILAW 872 (HP)

Kanta Devi v. State of Himachal Pradesh

2015-07-13

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, Judge (Oral) The learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. while seized of an appeal preferred by the State of Himachal Pradesh against the findings of acquittal recorded in favour of the accused/petitioner herein by the learned trial Court for hers having allegedly committed offences punishable under Sections 341, 504 and 506 of the IPC, besides also being seized of another appeal preferred at the instance of the accused/petitioner herein for hers having stood convicted by the learned trial Court for hers having committed offences punishable under Sections 323 and 326 of the IPC, was during the pendency of both the aforesaid appeals also seized of an application preferred at the instance of the accused/appellant/petitioner herein under Section 310 of the Code of Criminal Procedure. The learned Additional Sessions Judge, Ghumarwin, for the reasons recorded therein was constrained to dismiss the application preferred before it. 2. The learned counsel appearing for the petitioner herein has contended with much fervour before this Court that the application for local inspection as preferred before the learned Additional Sessions Judge, Ghumarwin was not dismissible as unwarrantably done by the learned Additional Sessions Judge, Ghumarwin. He contends on the strength of the provisions of Section 310 of the Code of Criminal Procedure, which are extracted herein after, that the visit of spot or the visit of the site of occurrence was imperative for adjudging the veracity or the truth of the genesis of the prosecution version. The provisions of Section 310 read as under:- “310. Local Inspection.- (1) Any Judge or Magistrate, may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.” However, it is apparent on a reading of the impugned order rendered by the learned Additional Sessions Judge, Ghumarwin that the site of occurrence has remained undisputed besides, there is a revelation in para-2 of the impugned order rendered by the learned Additional Sessions Judge, that the accused/appellant has canvassed the plea of self defence besides the injuries suffered by the complainant being accidental. Nonetheless, none of the aforesaid pleas of the appellant/accused/petitioner herein have been canvassed by her while recording her statement under Section 313 of the Cr.P.C. Consequently, it appears that in the event of the accused/appellant/petitioner herein having therein not propagated the defence, of injuries sustained by the complainant being accidental nor hers having canvassed the right of private defence inhering in her, may benumb the effect of the aforesaid pleas propagated by her during the course of her counsel cross-examining the prosecution witnesses. However, since the ground of waiver of, for the reasons aforesaid of the aforesaid defences, may stand in the way of the accused/petitioner herein while arguing the pending appeals before the learned Additional Sessions Judge, hence, forestall or pre-empt any reliance by her upon such portions of the cross-examination of the prosecution witnesses manifesting the aforesaid line of defence, it would be unjust to hence oust the petitioner herein during the course of hearing of the aforesaid appeals by the learned Additional Sessions Judge from canvassing both the lines of defence as occur in the cross-examination of the prosecution witnesses. Consequently, the learned Additional Sessions Judge may permit her to even canvass the said pleas even when they remain not projected in her statement recorded under Section 313, Cr.P.C. Now what is of utmost importance is an adjudication on the application under Section 310 of the Cr.P.C., and the tenacity of the reasons afforded by the learned Additional Sessions Judge for dismissing it. For determining the vigour and tenacity of the reasoning afforded by the learned Additional Sessions Judge, Ghumarwin, in dismissing the application, a perusal of the application preferred by the accused/appellant/petitioner herein before the learned Additional Sessions Judge, Ghumarwin, is imperative. For determining the vigour and tenacity of the reasoning afforded by the learned Additional Sessions Judge, Ghumarwin, in dismissing the application, a perusal of the application preferred by the accused/appellant/petitioner herein before the learned Additional Sessions Judge, Ghumarwin, is imperative. It omits to display with precision besides, with accuracy the evidence which has remained not properly appreciated and which would rather come to be properly appreciated only in the event of the learned Additional Sessions Judge proceeding to carry out for viewing it an inspection of the spot for erasing or obliterating any ambiguity qua the factum of the occurrence which took place there, is purportedly imbued with, for hence facilitating an appropriate, fair and just appreciation of evidence qua it nor there is an apposite averment therein that imprecise evidence exists qua the location of the site of occurrence for determining the factum whether as a matter of fact, the occurrence as alleged did take place there, in the manner alleged by the prosecution. The accused/appellant/ petitioner herein has not controverted the factum of the site of occurrence hence in the face of non repudiation by her qua the site or the location of the occurrence gives no leeway to her to contend that the learned Additional Sessions Judge, Ghumarwin proceed to inspect the spot which in her contemplation is rather the spot where the occurrence took place. In any case, permitting the accused/petitioner herein to warrant a direction to the learned Additional Sessions Judge, Ghumarwin to proceed to view the spot other than the one where the occurrence provenly took place, would sequel distortion besides, twisting of the genesis of the prosecution case which may be wholly impermissible especially when the accused/petitioner herein stood convicted by the learned trial Court for hers having committed offences punishable under Sections 323 and 326 of the IPC. Moreover, besides it would tantamount to this Court endorsing/approbating a well contrived mechanism of the petitioner to dislodge or scuttle the judgment of the learned trial Court. Moreover, besides it would tantamount to this Court endorsing/approbating a well contrived mechanism of the petitioner to dislodge or scuttle the judgment of the learned trial Court. Moreover, even though the provisions of Section 310 of the Cr.P.C., empowers or authorizes a Magistrate or a Judge which obviously even an Additional Sessions Judge is, who is seized with an appeal preferred at the instance of the appellant/petitioner against the judgment of the learned trial Court whereby the learned trial Court convicted the appellant/petitioner herein for hers having committed offences punishable under Sections 323 and 326 of the IPC and of an appeal preferred by the respondent herein against the findings of acquittal recorded in favour of the petitioner herein of the charge under Sections 341, 504 and 506 of the IPC, to even at the instance of the petitioner herein garner its provisions to view or visit a spot for the purpose of properly appreciating the evidence. Nonetheless, the sine qua non for exercising of jurisdiction by a Magistrate or Judge seized of the trial or an appeal arising therefrom as the case may be, is only in the event of there existing a trite, precise or lucid averment in the application portraying with specificity, the factum of a visit to the spot by a Magistrate or a Judge being essential or imperative for facilitating or enabling the Court to properly appreciate the evidence received at the inquiry or the trial. The application at hand is nebulously phrased and omits to point out with specificity besides vaguely portrays that there exists ambiguity about the spot where the alleged occurrence took place. The narration in the application at hand of their existing ambiguity about the site of occurrence is in contradiction and in conflict with the espousal by the petitioner of there being no dispute qua the site of occurrence, consequently, the averred factum therein of ambiguity existing qua the site of occurrence, hence the learned Additional Sessions Judge, Ghumarwin, being enjoined to inspect the site of occurrence is merely an afterthought and hence stands not to be countenanced by this Court. Besides, the factum of existence of any purported ambiguity qua the site of occurrence as displayed in the application at hand and its hence warranting a visit thereto by the Additional Sessions Judge is obviously not grooved in nor embedded upon the fact that such visit is essentially necessary for properly appreciating the evidence as received during the course of inquiry or trial. Consequently, to the considered mind of this Court, it appears that it is a well devised mechanism on the part of the accused/appellant/petitioner herein to in its garb enjoin upon the learned Additional Sessions Judge, Ghumarwin, to render an order thereupon for hence enabling him to visit a spot other than the place where the alleged occurrence took place, so also to dislodge or dispel the entire genesis of the prosecution case, besides overcome the effect of the findings of conviction recorded by the learned trial Court against the accused/petitioner herein for hers having allegedly committed offences punishable under Sections 323 and 326 of the IPC. The said endeavour is not to be vindicated. Moreover, there has been abysmal want of pleadings with precision in the application at hand as to the manner in which the visit or viewing of the place of occurrence by the learned Judge, even if, it is the site where the occurrence uncontrovertedly took place, would facilitate the learned Judge to properly appreciate the evidence which already exists before it. Since the sine qua non for exercise of jurisdiction under Section 310 of the Cr.P.C., on whose exercise for reasons to be recorded by the learned Judge, he would proceed to visit or view any site or any place where the alleged offence allegedly took place, is of such local visit/ viewing of any site or a place related to the commission of offence, being imperative for properly appreciating the evidence received during the inquiry or trial. Obviously when apart from the fact that in paragraph 7 of the application, the applicant/accused/petitioner herein portrays therein that there is ambiguity about the spot where the alleged occurrence took place which for the reasons aforesaid is an unsatisfactory ground for sustaining the application, there being no display therein that the visiting by the Judge of the site of occurrence or to any other place, is essential for a just and fair appreciation of the evidence on record nor also there is a portrayal with specificity qua which purported ambiguous evidence would hence come to be appraised in the proper perspective. Consequently, then the application at hand obviously when does not satisfy or satiate the parameters of Section 310 of the Cr.P.C., therefore, the reasons recorded by the learned Additional Sessions Judge, Ghumarwin, while dismissing the application, inasmuch as his having concluded that the site of occurrence when stands proved arising from the factum of its having remained uncontroverted besides, hence there being no necessity to visit it as the evidence on record abundantly displays the place where the alleged occurrence took place, does not suffer from any perversity or absurdity. Accordingly, the instant petition is dismissed and the impugned order is affirmed and maintained. 3. All the pending applications also stand disposed of. No costs.