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Himachal Pradesh High Court · body

2016 DIGILAW 1221 (HP)

State of H. P. v. Prem Chand

2016-06-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed by the State of Himachal Pradesh against the impugned judgment rendered on 23.05.2006 by the learned Additional Chief Judicial Magistrate, Palampur, District Kangra, H.P. in Criminal Case No. 170-II/2001, whereby the learned trial Court acquitted the respondents (for short ‘accused’) for the offences charged. 2. The brief facts of the case are that on 26.11.2000 Ramesh Kumar along with his wife Malkan Devi lodged the report at Police Post Panchrukhi, alleging therein that on 25.11.2000 when he returned back home from his fields in the evening at about 5.30 p.m. and was cutting fuel wood in his court yard accused Prem Chand, Roshani Devi and Sarla Devi tried to take the cattle through his court yard. On his objecting, accused Prem Chand gave a blow with a spade on his face below the right eye and on his left hand. When the wife of Ramesh Kumar tried to release him, accused Roshani Devi and Sarla Devi who were holding Battans in their hands gave her blows on the head and other parts of the body and as a result of which she sustained injuries. Ramesh Kumar and his wife were rescued from the clutches of the accused by Sita Ram and Bidhi Chand. On the basis of the information given by Ramesh Kumar the investigation was carried out by M.C. Jai Chand, who proceeded to the spot and one spade and two Battans were taken into possession vide separate seizure memo from the possession of accused Prem Chand and accused Sarla Devi. The injured were got medically examined. On such examination the doctor concerned issued MLCs thereby he opined the injuries on the person of Ramesh Kumar to be simple, whereas one of the injury sustained by Malkan Devi was grievous and the others were simple. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. Charges stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 451, 325, 323 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 witnesses. 3. Charges stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 451, 325, 323 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 witnesses. On closure of prosecution evidence, the statements of the 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 any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing se-quelled by gross mis-appreciation 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. 7. The learned vice counsel appearing for the respondents has with considerable force and vigour contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting 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. Qua the ill-fated occurrence, the ocular witnesses thereto corroborated the version rendered qua it by the victim/complainant Ramesh Chand, of his standing struck by accused Prem Chand with a Spade Ext.P-1 recovery whereof stood effectuated under memo Ext.PW-1/B by the Investigating Officer at the purported instance of accused Prem Chand, in sequel whereto the complainant underscores in his deposition of his tooth standing broken besides his cheek bone also suffering a fracture, injuries whereof stand reflected in Ext.PW- 8/A. Reiteratedly, the account aforesaid qua the occurrence deposed by the victim stands corroborated by ocular witnesses thereto. Victim Malkan Devi the wife of the complainant stands deposed by the informant to stand struck with Battans Ext.P-2 and Ext.P-3 by co-accused Roshani Devi and Sarla Devi recoveries whereof stood effectuated under memo Ext.PW-1/C by the Investigating Officer at the purported instance of accused Roshani Devi and Sarla Devi, in sequel whereof she sustained injuries as stand delineated in the apposite MLC prepared qua her person by the doctor concerned, MLC whereof stands comprised in Ext.PK. For testing the veracity of the version rendered qua the occurrence by the purported ocular witnesses thereto predominantly qua the suffering of injuries by victim/complainant Ramesh Chand in sequel to his standing struck with Spade Ext.P-1 by co-accused Prem Chand, an allusion is also imperatively enjoined to be made to the apposite MLC prepared qua him by PW-7, MLCs whereof stand comprised in Ext.PW-8/A and Ext.PW-8/B. The aforesaid allusion is imperative as only in the event of concurrence occurring inter se the ocular account qua the occurrence rendered by the PWs vis.a.vis. reflections embodied in the MLCs aforesaid prepared by the doctor concerned qua victim Ramesh Chand, would beget a firm conclusion from this Court of the ocular account qua the occurrence rendered by the prosecution witnesses standing on a sacrosanct pedestal. However, with reflections in the apposite MLCs prepared qua victim Ramesh Chand comprised in Ext.PW-8/A and Ext.PW-8/B not holding any under-linings therein in conformity with the ocular account qua the occurrence rendered by the prosecution witnesses would dispel the veracity of the version spelt qua the occurrence by the ocular witnesses thereto. In sequel, the ocular account qua the occurrence rendered by the ocular witnesses would thereupon stand tainted where upon no credence would be imputable. 10. Be that as it may, for the depositions of the complainant besides of PW-4 and PW-5 standing fastened with a virtue of credibility, it was enjoined upon them to depose a version qua the occurrence in harmony viz-a-viz the initial revelations made qua it by the complainant, which stands comprised in report Ext.PW-1/A, especially when each underscore in their respective testimonies of the ill-fated occurrence standing witnessed by Sanjay Kumar and Kumari Anju. Since proclamations occur in the testimonies of all the aforesaid prosecution witnesses of PW-4 and PW-5 witnessing the occurrence, the prosecution was enjoined to empathetically display of both at the relevant time being present thereat whereupon alone credence would stand imputed qua their respective renditions qua the ill fated occurrence. Contrarily, if the evidence adduced by the prosecution dispels their presence thereat, the obvious sequel thereto would of their purported ocular account qua the occurrence being discountable. Apparently, given the non revelation by the complainant in his Report Ext.PW-1/A qua both PW-5 and PW-4 being at the relevant time present thereat, fillips a conclusion from this Court of theirs at the relevant time being not present thereat. Consequently, the deposition of PW-1 wherein he has enunciated of PW-4 and PW-5 witnessing the occurrence constitutes an improved and embellished version qua the occurrence vis-a-vis his previous statement recorded in writing. As a corollary, not only the deposition of PW-1 stands stained with a taint of incredibility besides this Court is coaxed to also discount the testimonies of PW-4 and PW-5. In aftermath, it appears of hence the prosecution as a contrivance for falsely implicating the accused making concerted efforts to communicate before the learned trial Court a version qua the occurrence through PW-4 and PW-5 even when they had not witnessed it. The effect of the aforesaid dispelling by this Court qua veracity of their respective testimonies qua the occurrence is of even if the PWs aforesaid deposed in conformity vis-a-vis the apposite MLC prepared qua Malkan Devi comprised in Ext.PK, nonetheless with the version qua the occurrence rendered by the complainant, corroboration whereof stood meted thereto by PW-4 and PW-5, version whereof for reasons aforestated stands stained with a vice of improvements and embellishments rendering it hence to be un-amenable for credence standing placed there upon also concomitantly renders the aforesaid concurrence or conformity inter se the MLC qua Malkan Devi comprised in Ext.PK vis-a-vis the purported ocular account qua the occurrence rendered by the complainant besides by PW-4 and PW-5, to hold no efficacy/truth even qua the incriminatory role ascribed to co-accused Roshani Devi and Sarla Devi, of theirs by belabouring Malkan Devi with Battans Ext.P-2 and Ext.P-3 inflicting injuries on her person with user thereof. 11. 11. Even otherwise, the prosecution was enjoined to link Spade Ext.P-1 and Battans Ext.P-2 and P-3 recovered respectively under memos Ext.PW-1/B and Ext.PW-1/C with theirs standing used by the accused aforesaid. The efficacious manner of linking their user by the accused on the persons of the victims stood constituted in the prosecution adducing cogent evidence qua the prominent facet of the Investigating Officer concerned securing their efficacious recovery at the instance of each of the accused. The apposite cogent evidence stood comprised in the Investigating Officer prior to his effectuating the apposite recovery of Spade and Battans under apposite recovery memos, his recording the disclosure statements of each of the accused, with revelations therein qua the respective place of their hiding or keeping by each of them. However, no disclosure statements of each of the accused prior to effectuation of their recoveries by the Investigating Officer at the purported instance of each of the accused stood scribed by the Investigating Officer. Lack of recording by the Investigating Officer of the disclosure statements of each of the accused prior to his effectuating recovery of the aforesaid weapons of offence at the purported instance of the accused, stains with a vice of invention, the recovery of the aforesaid weapons of offence by the Investigating Officer at the purported instance of each of the accused. Contrarily, it secures an inference qua effectuation of their respective recovery by the Investigating Officer at the purported instance of the respective accused after 5 days of theirs suffering incarceration, standing made by the Investigating Officer not in the manner as disclosed therein rather reiteratedly his inventing their respective recovery at the purported instance of the respective accused. For reiteration, since the preparation of the disclosure statements of each of the accused by the Investigating Officer prior to his effectuating recovery of weapons of offence at their purported instance under the aforesaid recovery memos, was imperative, whereas the apposite disclosure statements of each of the accused by the Investigating Officer prior to his effectuating recovery of weapons of offence at their purported instance under the aforesaid recovery memos stood not recorded by him also fastens a further inference from this Court of their recovery if any at the instance of the accused by the Investigating Officer under the aforesaid recovery memos being un-amenable for any reliance being imputable thereto by this Court. Also the prime factum of the prosecution failing to adduce cogent evidence in display, of the weapons of offence Ext.P-1 to Ext.P-3 user whereof stands purportedly ascribed by it to the accused, of theirs standing hence respectively used by them stands garnered by the factum of PW-3 a recovery witness to both Ext.PW-1/B and Ext.PW-1/C whereunder recovery of Spade and Battans stood effectuated, acquiescing to the suggestion put to him by the learned defence counsel while the latter held him to cross-examination of none of the accused in his presence producing before the Police any of the aforesaid purported weapons of offence also when he deposes in his cross examination qua weapons of offence Ext.P-1 to Ext.P-3 lying in the police station, gives immense momentum to a firm conclusion of the Investigating Officer not recording prior to his effectuating recovery under recovery memos aforesaid of the aforesaid weapons of offence at the purported respective instance of each of the accused, their respective disclosure statements as none of the accused held any knowledge qua the place of their respective hiding or concealment by them besides also of theirs hence not using any of the aforesaid weapons of offence contrarily rather the Investigating Officer for falsely implicating them inventing their recovery in the Police Station concerned at the purported instance of the accused. In sequel, the recovery of weapons of offence is colourable whereupon no reliance is imputable by this Court. 11. 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 there from 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. 12. In view of the above, I find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.