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2016 DIGILAW 769 (HP)

State of Himachal Pradesh v. Ramesh Chand Sharma

2016-05-12

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. 1. The accused suffered conviction by the learned trial Court for his committing offences constituted under Sections 336 and 337 of the Indian Penal Code, in consonance therewith he stood sentenced by the learned trial Court. Standing aggrieved by the judgment of the learned trial Court, whereby the latter Court convicted and sentenced the accused/convict, the accused preferred an appeal thereform before the learned Sessions Judge, Shimla. The learned Sessions Judge, Shimla accepted the appeal preferred before him by the convict/accused. The State of Himachal Pradesh is aggrieved by the judgment of the learned Sessions Judge, Shimla, whereby it reversed the findings of conviction and consequent sentence recorded against the accused by the learned trial Court. 2. The prosecution story, in brief is that Krishan Dutt filed an application Ext.PW-5/A to Police Chowki, Dhami that on 11.10.2004, Ramesh Kumar S/o Daya Ram inflicted injury on the eye of Harish Kumar with ball and he is under treatment at IGMC, Shimla. On the basis of this application, rapat No.11 of 12.10.2004 was registered and HC Padam Dev went to IGMC, Shimla and recorded the statement of Hari Nand Sharma Ext.PW-4/A and on the basis of his statement the case FIR Ext.PW-6/A was registered against the accused. During the course of investigation, I.O. prepared the spot map Ext.PW-7/A and took into possession one bat and ball Exts.P.1 and P-2 vide recovery memo Ext.PW-5/B. The injured Harish Kumar was medically examined and obtained his case summary Ext.PW-10/A and Ext.PW-10/B on the record. Thereafter the statements of witnesses under Section 161 Cr.P.C. were recorded. 3. On completion of investigations into the offence allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court. 4. The accused-respondent herein stood charged by the learned trial Court for committing offences punishable under Sections 336 and 337 of the Indian Penal Code. 5. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, stood recorded wherein he pleaded innocence and claimed false implication. In defence no evidence was led by the accused. 6. 5. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, stood recorded wherein he pleaded innocence and claimed false implication. In defence no evidence was led by the accused. 6. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused whereas the learned Sessions Judge, Shimla recorded findings of acquittal in favour of the accused/respondent herein. 7. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned Sessions Judge, Shimla. The learned Additional Advocate General has concertedly and vigorously contended of the findings of acquittal recorded by the learned Sessions Judge, Shimla standing not anvilled on a proper appreciation by it of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends of the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 8. On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the learned Sessions Judge, Shimla standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference, rather theirs meriting vindication. 9. 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. 10. Succor to the prosecution case qua the ill-fated incident wherein the victim suffered the hit of a cricket ball struck from a bat wielded by the accused sequelling his sustaining injuries on his right eye enunciated in Ext.PW-10/A, stood concerted by the prosecution to stand sustained on the anvil of the statements of eye witnesses to the occurrence. The learned trial Court on an appraisal of the testimonies of ocular witnesses to the ill-fated occurrence, concluded therefrom of the victim sustaining injuries on his right eye in sequel to his standing struck thereat with a cricket ball flowing from the bat wielded by the accused, constituting an intentional act of the accused. The learned trial Court on an appraisal of the testimonies of ocular witnesses to the ill-fated occurrence, concluded therefrom of the victim sustaining injuries on his right eye in sequel to his standing struck thereat with a cricket ball flowing from the bat wielded by the accused, constituting an intentional act of the accused. The learned trial Court yet hence went stray from the imminent fact upsurging from the evidence on record of the accused while playing cricket had struck the victim with a cricket ball which palpably flowed from the cricket bat, which he held at the relevant time. Apart therefrom with the accused striking at the relevant time the cricket ball from the cricket bat wielded by him on the bowler delivering it at him from the bowler’s end, when obviously repels the factum of the accused suo moto striking the cricket ball from the bat wielded by him necessarily even if the cricket ball struck the right eye of the victim, nonetheless the upsurgence of the aforesaid facet when not connotative of the striking of the cricket ball by the accused from his bat on striking whereof it struck the right eye of the victim being neither intentional nor a deliberate actus reus, rather hence facilitates an inference of the striking of the cricket ball by the accused from the bat wielded by him while his playing cricket in a street which at the apposite stage stood entered upon the victim being purely an accidental hit. It may have been apt for the learned trial Court to conclude of the incriminatory act imputed to the accused carrying elements of deliberateness only when evidence reflective of the accused targeting the victim stood adduced on record. However when the aforesaid apt evidence is starkly amiss, whereas its existence on record may have sustained an inference of the incriminatory act imputed by the prosecution to the accused being sustainable obviously when it remains unadduced besides when none of the witnesses depose of the accused beckoning the bowler to at the apposite stage deliver the cricket ball at him, nor depose of his also aiming the ball for targeting the victim rather enhances an inference of the incriminatory act ascribed by the prosecution to the accused, lacking any factor or element of its being intentional. In aftermath, the incriminatory act attributed by the prosecution is contrarily concluded to be accidental thereupon it has to be held of the learned trial Court by mis-appreciating the evidence adduced on record besides its not applying the apposite provisions engrafted in the Indian Penal Code whereby any penal misdemeanor arising from sheer accident saves it from applicability qua it of either culpability or consequent punishment especially when the penal misdemeanor, as stands ascribed by the prosecution qua the accused imminently holds elements of its spurring from a pure accident, has unwarrantedly concluded otherwise. Contrarily the impugned judgment of the learned Sessions Judge, Solan whereby it accepted the appeal preferred before it by the accused against the judgment of conviction rendered against him by the learned trial Court appears to stand based upon proper appreciation of evidence besides an apt application of the relevant excepting provisions of the Indian Penal Code qua the fastening of penal liability upon the accused qua the penal misdemeanor ascribed to him, especially when for reasons afore-stated it spurs from a pure accident. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge, Shimla has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned Sessions Judge, Shimla 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 of the learned Sessions Judge, Shimla is affirmed and maintained. Record of the learned Courts below be sent back forthwith.