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2016 DIGILAW 589 (HP)

State of H. P. v. Sukhdev

2016-04-28

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 29.11.2005, by the learned Judicial Magistrate, 1st Class, Court No. III, Hamirpur, H.P. in Criminal Case No. 167-II-99, whereby the learned trial Court acquitted the respondent (for short ‘accused’) for the offences charged. 2. The brief facts of the case are that on 29.4.1999 at 7.00 p.m. at place Patta, all accused in furtherance of their common intention have beaten uttam Chand, Amar Nath and Bina Devi by hitting with stones. The matter was reported to the police and FIR came to be registered. Injured Uttam Chand was medically examined and his MLC was obtained. Medical examination of Uttam Chand revealed that he has sustained simple a well as grievous injures. Site plan was prepared. 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. The accused stood charged by the learned trial Court for his committing offences punishable under Sections 323, 325 read with Section 34 of I.P.C, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead any evidence in defence. 5. On an appraisal of the 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 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 being replaced by findings of conviction. 7. The learned vice counsel appearing for the respondent has with considerable force and vigor 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. 7. The learned vice counsel appearing for the respondent has with considerable force and vigor 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. Injured/victim Uttam Chand is alleged to have sustained injuries in sequel to an assault perpetrated on his person by the accused. PW-5 Dr. S.N Sharma, who has proven MLC qua the victim comprised in Ex.PW-5/A and which stood prepared by him in sequel to his subjecting his person to medical examination, the relevant portions whereof stands extracted hereinafter, has in his deposition comprised in his examination-in-chief communicated therein of injury No.1 being grievous in nature. “1. There was aedematous swelling of bother upper and lower eyelids of left side, cornea was hazy conjunctiva was congested. 2. There was lacerated wound on cheek left side along the infra-orbital margin with active bleeding and irregular margin. 3. There was swelling over left maxillary region and tenderness over the area. Cheek and side of nose were soiled with clotted blood. Also there was partial trismus. 4. There was complaint of looseness of last mular upper on left side with submucosal hemorrhage corresponding to mular tooth. I advised eye specialist and dental surgeon opinion for injury 1 and 2, 3 respectively. Probable duration of injury was 2/3 hours and nature o injury No.2 was simple and after obtaining the opinion of eye surgeon the injury No.1 was found grievous. I issued MLC Ex.PW- 5/A which bears my signatures and final opinion is circle Red on its backside. The injury is possible by hitting with stone.” 10. The prosecution to prove its case relies upon the testimony of Injured Uttam Chand. Uttam Chand while stepping into the witness box as PW-4 has proven the genesis of the prosecution case as comprised in FIR lodged qua the occurrence denoted in Ex.PW-6/B. His testimony is canvassed by the learned Deputy Advocate General to stand lent corroborative support by the testimonies of PW-2 Shri Salig Ram and PW-10 Smt. Veena Devi. Uttam Chand while stepping into the witness box as PW-4 has proven the genesis of the prosecution case as comprised in FIR lodged qua the occurrence denoted in Ex.PW-6/B. His testimony is canvassed by the learned Deputy Advocate General to stand lent corroborative support by the testimonies of PW-2 Shri Salig Ram and PW-10 Smt. Veena Devi. Since the PWs aforesaid stood contended by the learned Deputy Advocate General to be ocular witnesses to the occurrence, he further contends of hence theirs testimonies qua the occurrence warranting imputation of credibility by this Court. Even though the deposition of an injured may be sufficient to constrain this Court to record findings of conviction against the respondent/accused. However, the sole testimony of the injured/victim would be sufficient to sway this Court to found thereupon findings of conviction against the accused only when no other ocular witness to the occurrence stands relied upon by the prosecution to prove the genesis of the occurrence obviously when the ill-fated incident wherein the injured/victim sustained injuries on his person, reflected in the MLC, stood witnessed by ocular witnesses, hence this Court would not impute implicit reliance to the version qua the occurrence spelt out by the injured/victim unless the testimony of the victim acquires an assured unblemished corroboration from the depositions of ocular witnesses. Being so the veracity of the ocular account qua the occurrence rendered by PW-1, PW-2 and PW-10 is to be tested on the touchstone of whether each in their respective depositions depose an unblemished truth qua the incident. 11. The testimony of PW-1 (Amar Nath) who in his examination-in-chief though proves the genesis of the prosecution case yet when his testimony stands ridden with a vice of intra-se contradiction vis-à-vis the testimony of PW- 4 in as much as qua the day of arrival of the Investigating Officer at the site of occurrence predominantly spur-able from PW-1 deposing of the Investigating Officer visiting the site of occurrence on the 3rd day of its taking place, whereas with the injured/victim deposing of the police visiting the site of occurrence on a date succeeding its taking place hence impelling this Court to conclude therefrom of PW-1 rendering in connivance with the injured/victim a concocted version qua the incident. 12. 12. Amplifying vigor to the aforesaid inference stands derived from the factum of the previous statement of injured/victim standing recorded on 14.7.1999 and of the injured victim also standing recorded on the same day by the Investigating Officer. Even if assumingly the effect of intra-se contradiction intra-se the testimonies of PW-1 and PW-4 qua the date of arrival of the Investigating Officer at the site of occurrence is minimal, for rendering their previous statements qua the genesis of the prosecution version hence suffering erosion nonetheless the factum of the investigating Officer recording the respective previous statements of both PW-1 and PW-4 belatedly on 14.7.1999 hence with an inordinate procrastinated delay of more than 2 ½ months occurring since the date of occurrence vis-à-vis theirs respectively standing recorded by the Investigating Officer renders their respective previous statements to be suffering from a taint arising from theirs standing respectively belatedly recorded by the Investigating Officer. Consequently, the testimonies of each of the PWs aforesaid underscoring therein a version in corroboration to their previous statements recorded in writing stand also ridden with a vice or taint of falsehood and prevarication reiteratedly arising from the preeminent fact of their respective previous statements qua the occurrence standing belatedly recorded by the Investigating Officer wherefrom an ensuing sequel of theirs being contrived witnesses to the occurrence stands engendered. 13. Be that as it may if hence the testimonies of PW 2 stand ridden with falsity even otherwise any reliance by the prosecution upon his ocular version qua the incident is bereft of credibility arouse-able from the factum of his in his examination-in-chief omitting to specify therein the prime factum of the accused pelting stones on the person of the injured/victim. With lack of specificity by PW-2 a purported ocular witness to the occurrence qua the accused pelting a stone on the injured victim, obviously hence when no inculpatory stood imputed by him to the accused yet the learned APP omitting to obtain an order from the learned trial Court for declaring PW-2 hostile for as such for facilitating him to cross examine him for ousting his version comprised in his examination-in-chief it being in gross digression with his previous statement which otherwise too for reasons aforesaid is tainted besides besmirched constrains this Court to conclude of the omission on the part of APP to obtain an order from the learned trial Court for declaring PW-2 hostile besides obviously his omitting to cross-examine him qua the factum aforesaid of his in digression from his previous statement recorded in writing not specifying in his examination-in-chief the accused to be the person who pelted a stone on the injured/victim, portrays an acquiescence by the prosecution to the aforesaid underlinings by the PW-2 in his deposition comprised in his examination-in-chief. In sequel hence the ocular account qua the occurrence spelt out by PW-2 is of no avail to the prosecution to thereupon impute an inculpatory role to the accused. 14. Further more with the deposition of PW-10 Smt. Veena Devi also an ocular witness to the occurrence though underscoring in her examination-in-chief a version qua the ill-fated occurrence compatible to the one underlined in her previous statement recorded in writing, nonetheless for the reasons paramateria with the one which constrains this Court to not impute credibility to the testimony of PW-1 this Court is constrained to likewise discount the version qua the ill-fated occurrence rendered by PW-10 on the anvil of her previous statement belatedly standing recorded, rendering it open to an inference of hers being a contrived witness to the occurrence, credibility qua whose testimony cannot stand fastened by this Court. 15. 15. Be that as it may even if assumingly the occurrence did take place in the manner as spelt out by the injured/victim, yet with the prosecution communicating through PW-4 and PW-1 qua the availability at the site of occurrence of Subhash Chand and Dina Nath which factum stand corroborated by PW-10 in a much as she in tandem with the deposition of PW-1 and PW-4 communicating in her deposition qua the availability of many persons at the site of occurrence, yet the Investigating Officer omitting to record the statements of persons other than the PWs aforesaid, besides his omitting to associate the Pradhan besides other members of congregation assembled at the site of occurrence, necessarily when their association by the Investigating Officer was imperative to lend an impartisan colour to the investigations, constrains this Court to conclude of his holding a skewed besides a slanted investigation into the offences allegedly committed by the accused. Moreso his proceeding to record the statements of the purported ocular witnesses to the occurrence belatedly in the month of July, 2009 whereas the occurrence took place in the month of March, 2009, wherefrom as aforesaid an inference of his creating evidence against the accused stands already derived by this Court. Moreover with neither the Doctor who subjected the victim to medical examination and who has proven his report was shown by the APP the stone which the accused purportedly flung at the victim for evincing through him a firm opinion qua its being the object which begot the injuries on the person of the victim nor also PW-10 who has in her deposition deposed of the accused flinging a bulky stone on the victim was during the course of her examination by the APP concerned, shown the stone flinging whereof by the accused upon the victim begot the injuries on the person of injured/victim. In sequel, omission on the part of APP to during the course of his examining the aforesaid witness show them the stone which stood purportedly flung at by the accused at the victim, constrains an inference of the injuries as stood begotten by the victim/injured being a sequel to a cause other than the one espoused by the prosecution. 16. In sequel, omission on the part of APP to during the course of his examining the aforesaid witness show them the stone which stood purportedly flung at by the accused at the victim, constrains an inference of the injuries as stood begotten by the victim/injured being a sequel to a cause other than the one espoused by the prosecution. 16. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor, in as much, as, it having mis-appreciated the evidence on record or omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit interference. 17. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.