Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 618 (HP)

Rajan v. State of Himachal Pradesh

2016-04-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant revision petitions stand directed against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, rendered on 3.3.2009 in Cr. Appeal No. 10 of 2007 whereby it affirmed the conviction recorded against the Revisionists (for short “the accused”) by the learned trial Court on 30.3.2007 in case No. 102-2 of 2003 under Section 332/34 IPC, however, it modified the sentence as stood imposed upon the accused by the learned trial Court from theirs suffering simple imprisonment for three months to theirs suffering sentence till the rising of the Court besides imposed upon them a fine of Rs.1000/- each for the offences alleged against them and in default of payment of fine the accused stood sentenced to undergo simple imprisonment for one month. 2. The brief facts of the case are that in September, 2003, PW 3 Tara Chand complainant has been working as driver in HRTC Reckongpeo Depot. On 3.9.2003 PW 3 had been detailed on duty on bus No. HP25-0291 catering to Kaza-Shimla route. Tara Chand was conductor with the complainant on 3.9.2003. Among others, PW-4 Prem Singh had boarded the bus from Reckongpeo. PW-3 had left bus stand Reckongpeo at about 7.30 p.m. PW-3 had reached Powari at abut 8 p.m. whereat he noticed that on car bearing No. HP-27/0511 stood parked on one side. On accused Ranjan was standing in the centre of the highway. PW-3 requested the accused to step out of the highway, instead of stepping aside, the accused aforesaid was stated to have picked up a quarrel with PW-3. The accused person had pulled PW-3 out of the bus and dragged him. At such stage, two other persons had joined the accused namely Ranjan. All of them started causing hurt to PW-3. The accused persons were stated to be under the influence of liquor. The accused persons had torn the shirt Ex.P-1 to P-3. The accused persons were stated to have prevented PW-3 from discharging his duty as a public servant. Thereafter PW-3 had reported the matter to the police vide FIR Ex. PW-3/A. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, the Investigating Officer prepared challan and filed the same in the Court. 3. Thereafter PW-3 had reported the matter to the police vide FIR Ex. PW-3/A. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, the Investigating Officer prepared challan and filed the same in the Court. 3. The accused stood charged by the learned trial Court for theirs committing offence punishable under Section 332 read with Section 34 of 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 pleaded innocence and claimed false implication. However, they chose to lead evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused. The learned Appellate Court in affirmation to the judgment of the learned trial Court convicted the accused however it modified the sentence as disclosed hereinabove. 6. The learned counsel for the accused/revisionists has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court findings whereof stood affirmed/modified 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 conviction being reversed by this Court in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal. 7. The learned Deputy Advocate General for the respondent-State has with considerable force and vigor contended qua the findings of conviction recorded by the Courts 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. The prosecution to prove the genesis of the prosecution version laid dependence upon the testimonies of PW1 to PW8. All the aforesaid PWs are official witnesses, nonetheless when they depose a version qua the ill-fated occurrence bereft of any material inter-se or intra-se contradictions constrains this Court to impute implicit reliance to their respective versions qua the incident. 9. The prosecution to prove the genesis of the prosecution version laid dependence upon the testimonies of PW1 to PW8. All the aforesaid PWs are official witnesses, nonetheless when they depose a version qua the ill-fated occurrence bereft of any material inter-se or intra-se contradictions constrains this Court to impute implicit reliance to their respective versions qua the incident. Consequently with implicit reliance standing imputed by this Court to the testimonies of the official witnesses, the mere factum of the Investigating Officer not associating independent witnesses in the investigation conducted by him qua the offences committed by the accused would not render their unblemished, untainted testimonies rendered with intra-se harmony to stand deprived of their probative worth or vigor. The non association of independent witnesses by the Investigating Officer in the investigation held by him into the offences committed by the accused may stain the investigation held by him into the offences committed by the accused rendering hence the investigation to be imbued with a stain of partisanship besides skewed constraining this Court to conclude of official witnesses rendering a tutored version qua the incident even when they depose with intra-se harmony, only in the event of there being cogent evidence displaying the factum of their availability at the site of occurrence at the time contemporaneous to its taking place hence rendering their non-association by the Investigating Officer to be intentional besides deliberate hence staining his investigation. 10. The learned counsel for the revisionists yet contends of a passenger namely Sunder Lal, who was occupying the bus, drivers seat whereof stood manned by the victim though a ocular witness to the occurrence besides when he on his stepping into the witness box he would have rendered an impartisan and independent account qua the occurrence, he though stood associated by the Investigating Officer in the investigation conducted by him qua the offences committed by the accused, yet despite his standing cited as a prosecution witness in the list of witnesses furnished before the learned trial Court by the Investigating Officer, he stood not examined by the prosecution rather stood given by the learned APP. Dehors the observations recorded hereinabove qua the factum of association by the Investigating Officer of an occupant namely Sunder Lal as a witness in the investigations conducted by him qua the offences allegedly committed by the accused renders the omission on the part of the prosecution to examine him as its witness standing spurred for perse begetting the sequel of a truthful version qua the occurrence standing smothered. The smotherings by the prosecution of emanations of an independent ocular account qua the occurrence from Sunder Lal non- emanation whereof occur on his standing un-examined as a prosecution witness despite his name occurring in the list of prosecution witnesses percolates the renditions qua the occurrence by the official witnesses, with the concomitant vice/effect of both justice and truth being a causality thereof. In sequel an untruthful version qua the occurrence even if rendered with intra-se corroboration by the official witnesses cannot stand accepted by this Court as they appear to in connivance with each other render a convenient tutored version qua the incident. What aggravates the aforesaid inference is of Sunder Lal on his standing examined by the accused in his defence his therein rendering a version which suffocates the prosecution version necessarily hence reliance thereupon by the prosecution was imperative whereas he was despite his standing cited as a witness for no worthy reasons given up wherefrom an inference stands aroused of the prosecution smothering emanations of truth qua the occurrence from him. Moreso when his name exists in the list of prosecution witnesses the preeminent ensuing inference therefrom is of the prosecution conceding to his presence at the site of occurrence contrarily his testimony is to be construable to be neither concocted nor invented rather is to be construable to be a truthful independent version qua the incident, necessarily it warrants its being accepted rather its standing discounted as untenably done by the learned trial Curt. 11. Be that as it may the accused were unknown to the complainant. The names of the accused remained undisclosed in the FIR. The unfamiliarity of the complainant with the identity of the accused rendered necessary the holding of a Test Identification Parade in accordance with law by the Investigating Officer. 11. Be that as it may the accused were unknown to the complainant. The names of the accused remained undisclosed in the FIR. The unfamiliarity of the complainant with the identity of the accused rendered necessary the holding of a Test Identification Parade in accordance with law by the Investigating Officer. Even though the holding of a Test Identification Parade and the earmarking of the identity of the accused therein by the complainant may not constitute firm substantive evidence rather would constitute evidence in corroboration to the prosecution version. Necessarily hence when the earmarking of the identity of the accused by the complainant during the holding of a Test Identification Parade would lend corroboration to the identification in Court of the accused by the victim/complainant, it was untenable for the learned Appellate Court to slight the import of its standing not conducted by the Investigating Officer especially when the learned trial Court fastens probative tenacity to the identification in Court of the accused by the victim merely for non-occurrence of communications in the respective cross-examinations of the official witnesses of the accused being not the persons who were available at the site of occurrence or theirs being not the persons who committed the offences. It appears that thereupon the learned Appellate Court drew an inference of the defence acquiescing to their presence at the site of occurrence. However the inference aforesaid drawn by the learned Appellate Court was un-attractable qua the accused especially when DW-1 stood un-examined as a prosecution witness rather as a defence witness wherein he has in his deposition dispelled the factum of the accused being the persons who committed the offences alleged. 12. In view of above, the present petitions are accepted. The impugned judgment(s) are quashed and set aside. The accused are acquitted of the offences alleged against them. Fine amount, if any deposited by the accused be refunded to them. Pending applications stand disposed of accordingly. Records be sent back.