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2016 DIGILAW 2321 (HP)

State of H. P. v. Rajesh Kumar @ Bati

2016-11-02

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J The instant appeal stands directed against the impugned judgment of 26.11.2007 rendered by the learned Additional Sessions Judge, Mandi, District Mandi, H.P. in Criminal Appeal No. 30/2003, whereby the learned Additional Sessions Judge while reversing the findings of conviction recorded qua the respondent herein by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, acquitted him for the offences charged. 2. The brief facts of the case are that on 24.7.1996 the complainant Suresh Kumar alongwith Pal @ Dharam Singh were attending marriage at Sundernagar. In the evening they went to the hotel of Ram Singh situated at Bhojpur for dinner. When both of them came out of the hotel, 5-6 boys, who were drunk started abusing them and when Pal asked them as to why they are abusing them, the aforesaid 5-6 boys started beating Pal. When Suresh Kumar intervened and tried to rescue his friend Pal, they started beating Suresh Kumar. His friend Pal ran away. The boys aforesaid were beating Suresh kumar with a grip, broken bottle and knife on his head, face and shoulder. Suresh Kumar could identify only Rajesh Kumar @ Bati as one of the assailants as he was already known to him. The complainant also escaped himself from the assailants and ran away to his house situated at village Dhaneshari. Som Krishan, brother of the complainant took him to SDH, Sunderngar for medical treatment. On 25.7.1996 the Medical Officer informed the police on telephone that injured Suresh Kumar had been assaulted and was admitted in the hospital. ASI Suram Singh alongwith C Amar Singh went to SDH Sunderngar where he recorded statement of Suresh Kumar under section 154 Cr.P.C. FIR stands registered against the accused. On completion of all codal formalities and on conclusion of the investigation into the offence allegedly committed by Rajesh Kumar @ Batti (accused/respondent herein), Gagan and Surinder Kumar @ Sidhu challan was prepared and filed in the Court. 3. The accused Rajesh Kumar @ Batti, Gagan and Surinder Kumar @ Sidhu stood charged by the learned trial Court for theirs committing offences punishable under Sections 324, 325, 341 readwith Section 34 I.P.C to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 witnesses. 3. The accused Rajesh Kumar @ Batti, Gagan and Surinder Kumar @ Sidhu stood charged by the learned trial Court for theirs committing offences punishable under Sections 324, 325, 341 readwith Section 34 I.P.C to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 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 claimed false implication. However 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 conviction against the respondent herein for offences punishable under Section 325, 341 readwith Section 34 of IPC. Remaining accused stand acquitted by the learned trial Court. 6. In an appeal preferred therefrom by the respondent herein before the learned Additional Sessions Judge, Mandi, the latter Court while allowing the appeal preferred therebefore by the respondent herein reversed the findings of the conviction recorded qua the respondent herein by the learned trial Court. 7. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Appellate Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled 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 standing replaced by findings of conviction. 8. The learned counsel appearing for the respondent has with considerable force and vigor contended qua the findings of acquittal recorded by the learned Appellate Court standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 9. This Court with the able assistance of the learned counsel for the parties has with studied care and incision, evaluated the entire evidence on record. 10. PW-3 Suresh Kumar (injured/complainant) had lodged an apposite report qua the occurrence before the police station concerned comprised in Ex. PW-3/A wherein he named Bati @ Rajesh Kumar to be one of the assailants in the assault perpetrated on his person. He received injuries as stand reflected in MLC comprised in Mark-Y. A recital occurring in Mark Y reflects qua the Doctor, who prepared it referring the complainant for examination to the Radiologist. 11. PW-3/A wherein he named Bati @ Rajesh Kumar to be one of the assailants in the assault perpetrated on his person. He received injuries as stand reflected in MLC comprised in Mark-Y. A recital occurring in Mark Y reflects qua the Doctor, who prepared it referring the complainant for examination to the Radiologist. 11. PW-7 Dr. S.K Malhotra on a reference made to him by the Doctor who prepared Mark Y subjected the complainant to X-Ray examination, in sequel whereto X-Ray films comprised in Ex.PW-7/A to PW-7/C stood prepared, on discernment whereof he rendered his opinion comprised in Ex.PW-7/D holding a communication qua occurrence of fracture of left side frontal bone of skull of the complainant/injured. The Doctor who prepared MLC (Mark Y) on receiving the report of the Radiologist pronounced therein an opinion qua injury No.3 reflected in Mark Y being grievous. 12. The learned Appellate Court while reversing the findings of conviction recorded qua the respondent herein by the learned trial Court had assigned a reason, qua with PW-4 (Kashmir Singh) and PW-5 (Ram Singh) independent witnesses to the ill-fated occurrence not supporting the prosecution case also with PW-1 (Som Krishan) a witness to recovery memo Ext.PA whereunder grip allegedly wielded by the accused for inflicting injuries on the person of victim/complainant stood recovered, omitting to lend corroboration to the recitals occurring in the relevant memo, hence it standing prodded to record findings of acquittal qua the respondent herein. 13. The learned Appellate Court had concluded of with Dr. V.K Kapil who had prepared MLC Mark Y in sequel to his subjecting the complainant to medical examination not stepping into the witness box rendered the enunciations occurring therein to stand unproved. For all the reasons assigned hereinafter the reasons as stand propounded by the learned appellate Court are extremely feeble in legal vigor whereupon this Court is constrained to reverse the findings of acquittal recorded qua the respondent herein. 14. True it is that the independent witnesses to the occurrence omit to lend vigor to the prosecution case. For all the reasons assigned hereinafter the reasons as stand propounded by the learned appellate Court are extremely feeble in legal vigor whereupon this Court is constrained to reverse the findings of acquittal recorded qua the respondent herein. 14. True it is that the independent witnesses to the occurrence omit to lend vigor to the prosecution case. However the mere factum of independent witnesses to the occurrence who testified as PWs 4 and 5 not supporting the prosecution version would not constrain this Court to omit to revere the testimony of the complainant who deposed as PW-3 unless his testification if read in its entirety displays qua his propagating therein a version ridden with falsity besides with a vice of his improving as well as embellishing upon his previous statement recorded in writing. A close and circumspect reading of the testification of PW-3 occurring both in his examination-in-chief also in his cross-examination discloses qua his in tandem with his previous statement comprised in Ex.PW-3/A making echoings therein qua the respondent herein whom he proceeded to identify in Court being a participant in the ill-fated occurrence. He also identified grip which stood recovered by the investigating Officer under memo Ex. PA. 15. The witnesses to recovery memos (Ex. PA and PB) who testified as PW-1 and PW-2 in their respective testifications unequivocally deposed qua grip standing taken into possession by the police on its standing produced at the Police Station by accused Rajesh @ Batti. The aforesaid unrebutted testifications of PW-1 and PW-2, the witnesses to the recovery memo Ext.PA whereunder grip stood produced by accused Rajesh before the Investigating Officer concerned, naturally hence hold visible loud unveilings of thereupon the efficacy of its recovery under the memo aforesaid holding vigor besides immense formidability also the effect of the aforesaid inference drawn by this Court is qua omission of PW-1 and PW-2 to lend succor to the prosecution case and the effect of theirs reneging from their pervious statements recorded in writing standing omnibusly subsumed besides the factum of independent witnesses not supporting the prosecution case also wanes and gets scuttled. Since the counsel for the respondent herein did not subject PW-1 and PW-2 witnesses to the relevant recovery memo to an efficacious cross-examination for thereupon his concerting to project qua grip recovered under memo Ex.PA sanding not produced by him before the police rather it prior to its recovery in the manner reflected in Ext.PA being available in the police station concerned. Consequently, omission of the aforesaid concert by the learned defence counsel to thereupon tear the efficacy of Ex. PA fosters an inference of the accused Rajesh at the relevant time wielding grip recovered under Memo Ext.PA also the factum of his producing it before the Investigating Officer concerned being free from any taint of the investigating Officer concerned contriving the recitals occurring in Ex.PA. 16. The learned appellate Court while discounting the vigor of the prosecution case had unnecessarily emphasized upon the imperative requirement of independent witnesses to the ill-fated occurrence supporting the prosecution case whereas theirs not supporting it, it concluded of the prosecution failing to prove the charge against the respondent herein. However, the aforesaid reason as stands assigned by the learned appellate Court is for reasons afore-stated per se flimsy besides weak. Conspicuously, with proven efficacious recovery of grip recovered under memo Ext.PA concomitantly bespeaking the factum of its user upon the victim by the accused/respondent herein. 17. Be that as it may with the complainant deposing in tandem with his previous statement recorded in writing wherein he named the accused/respondent herein to be one of the assailants who perpetrated an assault upon him, in sequel whereto he suffered grievous injuries though was sufficient for the learned Additional Sessions Judge to proceed to affirm the findings of conviction rendered against the respondent herein by the learned trial Court yet he for specious reasons discounted its effect also his verdict for reasons ascribed herein-after suffers from an inherent fallacy. Since the learned defence counsel while holding the complainant to cross-examination had put suggestions to him holding portrayals therein qua availability of the complainant at the relevant site of occurrence also when the learned defence counsel while holding PW-3 to cross-examination put suggestions to him where-within echoings are held qua the respondent herein also being available at the relevant site of occurrence yet his concerting to proclaim therein qua there occurring no scuffle thereat inter-se him with the complainant, suggestions whereof obviously personify qua the defence acquiescing to the factum of the accused/respondent herein at the relevant time being available at the relevant site of occurrence. In aftermath, the effect of the defence hence acquiescing to the presence of the accused herein at the relevant time at the site of occurrence when read in conjunction with the proven efficacious recovery of the relevant weapon of offence under memo Ex.PA by the Investigating Officer on its standing produced before him by the accused concerned also when PW-3 in his previous statement recorded in writing wherein he has named the accused/respondent herein to be one of the assailants has testified in consonance therewith, consistent testimony whereof of PW-3 qua the aforesaid facet remaining un-concerted to be shred of its efficacy by the defence, is of its therein holding a visible imminent display qua the defence conceding to the testification of PW-3 occurring in his examination-in-chief wherein he makes an imputation qua accused Rajesh Kumar perpetrating an assault upon him. 18. The learned appellate Court had discounted the vigor of Mark Y merely on the score of the Doctor who prepared it remaining un-examined by the prosecution. 18. The learned appellate Court had discounted the vigor of Mark Y merely on the score of the Doctor who prepared it remaining un-examined by the prosecution. The aforesaid reason as stands propounded by the learned Additional Sessions Judge while recording an order of acquittal, is permeated with a legal frailty, significantly when PW-7 to whom a reference was made by the Doctor who prepared mark Y to hold the victim to X-Ray examination, in sequel whereto Ex.PW-7/A to PW-7/C stood prepared wherewithin pronouncements are held qua the victim suffering fracture of left side frontal bone of skull, injury whereof stands opined by him to be grievous in nature also the Doctor who prepared Mark Y on receiving the opinion prepared by PW-7 comprised in Ex.PW-7/D, opining qua the relevant injury being grievous in nature, was hence a sufficient portrayal of the injuries sustained by the victim in sequel to his standing assaulted by the accused being grievous in nature, without any insistence being made upon the doctor who prepared the apposite MLC standing examined for his hence proving it. Consequently the insistence made by the learned Additional Sessions Judge qua Mark-Y which stands prepared by the Doctor concerned standing proven by the latter for hence sustaining the prosecution case of the complainant sustaining grievous injuries, is ridden with gross absurdity besides perversity. 19. For the reasons which have been recorded hereinabove, this Court holds that the learned appellate Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by it suffers from a perversity or absurdity of mis-appreciation and non appreciation of the evidence on record. 20. In view of the above, the impugned judgment is set aside. The conviction and sentence imposed upon the accused/respondent herein by the learned trial Court is maintained and affirmed. The pronouncement of this Court be put into execution with utmost promptitude. The records be sent back.