Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2630 (HP)

Tej Singh v. State of H. P.

2016-12-09

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the appellant/convict against judgment recorded by the learned Sessions Judge, Mandi, H.P. in Sessions Trial No.4 of 2005 on 7.5.2007, whereby, he convicted the accused/appellant herein for his committing offences punishable under Sections 436 and 427 besides sentenced him to suffer imprisonment for the aforesaid offences as under: Sections Sentenced imposed 436 of the IPC Accused stands sentenced to suffer rigorous imprisonment for five years with fine of Rs.10,000/-, in case of default in the payment of fine amount the accused shall further undergo imprisonment for one years. 427 of the IPC Sentenced to suffer imprisonment for six months and to pay a fine of Rs.1,000/- and in default to undergo imprisonment for 1 month. 2. The facts relevant to decide the instant case are that on the intervening night of 13th and 14th October, 2003, complainant Narotam Ram was watching television at 10.45 p.m. in his house. Then he heard murmuring of persons on the back side of his house and the complainant came out and noticed that Ghanshayam and accused Tej Singh were going on the path by the side of the house of the complainant in tipsy condition. The complainant thereafter went to sleep and in the meantime his wife Kala Devi came outside the house to urinate. She raised cries and complainant immediately came outside and noticed that his cowshed has been set on fire and the complainant immediately untethered/untied the cow, buffalo and calf and brought them outside the cowshed. However, a domestic bitch could not be saved and was burnt in the house fire which has spread on all the sides. All the family members tried to extinguish the fire but the same could not be controlled. The complainant incurred loss of 3000 bundles of grass. In the meanwhile other persons from the village, on seeing the fire also tried to extinguish the fire. There were other articles in the cowshed which were also burnt. Tej Singh and Ghanshayam has put his house on fire because of previous enmity. Thereafter complainant Narotam made a telephone call in police post Rewalsar and the same was entered in the daily diary. Thereafter H.C. Joginder Pal rushed to the spot and found that the cowshed of Narotam was completely burnt by fire. Tej Singh and Ghanshayam has put his house on fire because of previous enmity. Thereafter complainant Narotam made a telephone call in police post Rewalsar and the same was entered in the daily diary. Thereafter H.C. Joginder Pal rushed to the spot and found that the cowshed of Narotam was completely burnt by fire. Joinderpal recorded the statement of Narotam Ram and the same was sent through constable Subhash Chand to police station Balh for registration of the case. On the basis of which the FIR was registered in the police station concerned. The police started the investigations in the case and completed all the codel formalities. 3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court. 4. The accused was charged by the learned trial Court for his committing offences punishable under Sections 436 and 427 of the IPC. In proof of the prosecution case, the prosecution examined 8 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which he claimed innocence and pleaded false implication. However, he did not lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 6. The convict/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit 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. 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. The entire fulcrum for testing the veracity of the genesis of the prosecution case rests upon the FIR qua the occurrence recorded before the Police Station concerned by the informant/complainant (PW1). The FIR qua the relevant occurrence stands borne on Ex.PC. It stood recorded on anvil of a statement comprised in Ex.PA made before the Investigating Officer concerned by the complainant/informant (PW1). For the prosecution to succeed in its endeavour of proving the charge against the accused/convict it was under an imperative obligation to obtain apposite elicitations from the prosecution witnesses holding be speakings qua thereupon consonance besides corroboration standing meted by them vis-a-vis the revelations manifested in Ex.PA besides in Ex.PC. The effect, if any, of any contradictions or improvements occurring therefrom in the respective testifications of material prosecution witnesses would belittle the creditworthiness of the genesis of the prosecution case. 10. For making the relevant un-earthings qua the prosecution witnesses while testifying qua the embodiments occurring in Ex.PA besides in Ex.PC, theirs making any departure therefrom, an allusion to their respective testifications is imperative. An allusion to the testification of PW-1, on whose previous statement comprised in Ex. PA, FIR comprised in Ex.PC stood registered before the police station concerned underscores the factum of his though in Ex.PA besides in Ex.PC unearthing therein qua accused Tej Singh along with Ghanshayam standing noticed by him from his window to proceed towards their house where after he echoes therein qua his closing the window of his house and thereupon his proceeding to his bedroom to sleep, whereupon his wife who had hitherto proceeded outside for easing herself on returning to her homestead apprised him qua their cowshed standing set ablaze. Both in Ex.PA besides in Ex.PC there is no narration by PW-1 qua his wife PW-2 on returning to her homestead after easing herself outside hers thereupon apprising him qua accused Tej Singh setting ablaze their cowshed. Even when the aforesaid articulations remained un-communicated in both Ex. Both in Ex.PA besides in Ex.PC there is no narration by PW-1 qua his wife PW-2 on returning to her homestead after easing herself outside hers thereupon apprising him qua accused Tej Singh setting ablaze their cowshed. Even when the aforesaid articulations remained un-communicated in both Ex. PA besides in Ex.PC by PW-1, the complainant/informant, he yet proceeded to while testifying in Court make disclosures therein qua his wife who had hitherto proceeded outside for easing herself on returning to her homestead hers apprising him qua their cowshed standing set ablaze by Tej Singh. The effect of the factum probandum aforesaid remaining un-narrated by the informant both in Ex.PA besides in Ex.PC renders his testification qua it to stand stained with a vice of gross improvement besides a vice of a stark embellishment surfacing vis-a-vis his previous statement recorded in writing where form an inference is erectable qua his testimony qua the aforesaid testified factum qua his wife who had hitherto proceeded outside for easing herself on returning to her homestead hers apprising him qua their cowshed standing set ablaze by the accused being un-amenable for credence standing placed thereupon. Furthermore the effect thereof is qua the entire genesis of the prosecution case standing jettisoned. 11. PW-2, the wife of the complainant/informant (PW-1), who had conveyed the necessary awakenings qua the aforesaid factum to PW-1, though in her testification has also rendered a version ascribing a penally inculpable role to the accused/convict/appellant herein also therein she has made communications qua hers sighting the accused/respondent to set ablaze her cowshed yet the aforesaid testified factum also warrants its standing disimputed credence arousable from the factum qua when the necessary awakenings stood purveyed at the earliest to PW-1, the informant by PW-2, his wife, the entire gamut of the awakenings holding there within also the factum of hers sighting Tej Singh to set ablaze her cowshed stood enjoined to stand communicated by her to the informant for facilitating the latter to make apposite concurrent communications in Ex.PA besides in Ex.PC, yet with his omitting to do so, constrains an inference qua the aforesaid echoings not standing communicated at the apposite stage by PW-2 to PW-1. Significantly, also thereupon when the aforesaid factum remained un-embodied in Ex.PA besides in Ex.PC the necessary sequel therefrom is qua PW 2, his wife who had hitherto proceeded outside for easing herself on hers returning to her homestead hers not apprising him qua their cowshed standing set ablaze by the accused/appellant. Moreover, conspicuously, when both are to be concluded to preceding the lodging of the FIR naturally holding inter se confabulations qua the factum aforesaid also when the aforesaid factum was enjoined to stand narrated thereat by PW-2 to PW-1, its remaining un-embodied in Ex.PA, stems an inference qua the aforesaid factum remaining un-communicated at the earliest by PW-2 to PW-1 wherefrom it is obvious to conclude qua PW-2 subsequent to the lodging of the FIR qua the occurrence hers both in collusion with PW-1 besides in collusion with the Investigating Officer concerned engineering and contriving the factum aforesaid merely for, as evident from record with hers holding enmity with the accused/respondent, hers hence, conjuring to wreak vendetta upon him. 11. Be that as it may, PW-1 had noticed from the window of his house one Ghanshayam accompanying Tej Singh. However, there is no ascription of any incriminatory role to Ghanshayam nor also despite Ghanshayam purportedly accompanying Tej Singh at the relevant juncture, the prosecution though by its joining him as a prosecution witness could unearth from him the truth qua the relevant occurrence, yet it omitted to join Ghanshayam either as a prosecution witness nor obviously Ghanshyam stepped into the witnesses box. Since, the testification of the aforesaid Ghanshayam constituted the best independent evidence for giving succor to the charge significantly when he though may have rendered an uninterested or unbiased version qua the occurrence vis-a-vis the interested inimical version qua it communicated by PW- 1 and PW-2 also when for the reasons aforesaid the version of the prosecution witnesses stands stained with a pervasive vice of improvements besides embellishments vis-a-vis the prosecution case especially vis-a-vis the previous statements recorded in writing of PW-1 constrains a conclusion qua the Investigating Officer by colluding with PW-1 and PW-2 his smothering the truth qua the genesis of the occurrence. 12. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has not 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 suffers from a perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 13. Consequently, the instant appeal is allowed and the judgment impugned here at is set aside. Accordingly, the appellant herein/convict is acquitted of the charge. The fine amount, if any, deposited by the appellant herein before the learned trial Court be refunded to him forthwith. The personal and surety bonds of the appellant stands canceled. Records be sent back forthwith.