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Himachal Pradesh High Court · body

2016 DIGILAW 999 (HP)

State of H. P. v. Bhumi Dev

2016-06-01

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 24.10.2006 by the learned Judicial Magistrate, 1st Class, Court No.III, Hamirpur in Police Challan No. 90-II/2003, RBT No. 372-II/2004 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 3.8.2003 at about 6.45 AM at place Awahdevi, accused Bhumi Dev has attacked the complainant Sh. Bachittar Singh with ladle (kadchhi). The injured was moved to the hospital and relevant FIR was registered. Medical examination of the complainant was conducted which revealed that he had sustained grievous injury. Police visited the spot and site map was prepared. 3. 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. 4. Charge stood put to the accused by the learned trial Court for his committing offences punishable under Sections 325 and 323 IPC to which he pleaded not guilty and claimed trial. 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, was recorded in which he pleaded innocence and claimed false implication. He chose to lead evidence in his defence and examined DW-1. 6. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 7. 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. 8. The learned counsel appearing for the respondent has with considerable force and vigour 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. 9. 8. The learned counsel appearing for the respondent has with considerable force and vigour 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. 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. In proof of the prosecution case the prosecution has laid dependence upon the testimonies of ten witnesses. The complainant/victim has deposed as PW-1. His sole testimony qua the occurrence would ipso facto attain credibility bereft of its standing meted corroboration by any eye witnesses to the occurrence, on upsurgings emanating therein of his testimony qua the occurrence being trustworthy as well as inspiring. However, the complainant while deposing as PW-1 has echoed therein of at the relevant time his standing rescued by his elder brother Raghunath from his standing belaboured by the accused respondent herein. Though the complainant victim deposes in his deposition comprised in his examination in chief of at the relevant time except Raghunath none else being available at the site of occurrence contemporaneous to its taking place thereat yet the Investigating Officer despite the factum of the victim omitting to name both PW-5 and PW-6 in his examination in chief to be also the persons available at the site of occurrence also theirs hence witnessing it alongwith Raghunath his elder brother, has proceeded to join them as witnesses to the occurrence. The effect of the omission on the part of complainant to communicate in his deposition comprised in his examination in chief of both PW-5 and PW-6 witnessing the occurrence has a concomitant bearing upon the efficacy of the concert of the Investigating Officer to associate them as witnesses to the occurrence besides has a telling effect upon their respective depositions wherein they unveil a narration qua the occurrence in corroboration to the testimony of PW-1 narration whereof by them emanates from theirs witnessing the occurrence yet when for reasons aforestated the victim not naming them in his examination in chief of theirs witnessing the occurrence renders their respective depositions wherein they communicate an ocular account qua the occurrence to be engineered, concocted as well as contrived. In sequel, the creditworthiness of theirs respective testimonies qua the occurrence gets enfeebled especially when the prosecution has concerted to secure corroboration thereto from PW-5 and PW-6 the purported eye witnesses to the occurrence testimonies whereof when stand ingrained with a vice of invention besides of concoction also hence deprive the prosecution case of its probative sinew and vigour. In aftermath, the genesis of the prosecution case in its entirety holds no tenacity. Moreover, even the testimony of PW-1 acquires a stain of untruthfulness engendered by the factum of the Investigating Officer adding besides Raghunath, PW-5 and PW-6 as persons who witnessed alongwith the aforesaid Raghunath, the ill-fated occurrence. 11. Be that as it may with Raghunath standing named by the victim to be the person who rescued him from the clutches of the accused respondent also his preempting the latter from continuing to belabour him though stood cited as a prosecution witness yet stood unexamined by the prosecution whereas he stood examined as a defence witness wherein he has attributed the sustaining of injuries by the victim to his accidently slipping at the site of occurrence. The learned APP concerned was enjoined to when his name occurs in the list of prosecution witnesses to examine him as its witness for securing corroboration to the testimony of PW-1 especially when he names him to be the only person available at the site of occurrence. However, the APP concerned omitted to examine him on the flimsy ground of his being won over. However, the APP concerned omitted to examine him on the flimsy ground of his being won over. Even if as a matter of fact he deposes in support of the defence hence may foist vigour to the omission on the part of the APP concerned to examine him as a prosecution witness nonetheless even prior thereto it was enjoined upon the APP concerned to despite his holding a view of there being a likelihood of his not supporting the prosecution case his endeavoring to test the factum of his holding leanings towards the accused by facilitating his stepping into the witness box as a prosecution witness whereupon in case he reneged from his previous statement, it was yet open for the learned APP to with the permission of the Court declare him hostile whereupon it was open for him to belittle the factum of his reneging from his previous statement recorded in writing by his on holding him to cross-examination confront him with his previous statement recorded in writing. However, the learned APP omitted to make the aforesaid endeavour besides also when Raghunath deposes in favour of the defence version the learned APP while cross-examining him did not confront him with his previous statement recorded in writing for impeaching the credibility of his deposition in his examination in chief wherein he has deposed a version supportive of the defence. Consequently, also the latter omission on the part of the learned APP concerned pronounces upon the factum of his thereat also not making any concerted attempt to belittle his testimony supportive of the defence version qua the incident. Consequently, the version which stands propagated by DW-1 appears to be a truthful version besides also engenders an inference of his previous statement recorded in writing by the Investigating Officer being both engineered as well as false. Preeminently the Karchi with user whereof the accused/respondent struck grievous wounds on the person of the victim stood not recovered on 3.8.2003 rather stood belatedly recovered on 18.08.2003 under memo Ext.PW-1/A. Consequently, the aforesaid delay in the recovery of Karchi the purported weapon of offence used by the respondent to belabour the victim stains its recovery. Preeminently the Karchi with user whereof the accused/respondent struck grievous wounds on the person of the victim stood not recovered on 3.8.2003 rather stood belatedly recovered on 18.08.2003 under memo Ext.PW-1/A. Consequently, the aforesaid delay in the recovery of Karchi the purported weapon of offence used by the respondent to belabour the victim stains its recovery. Also given the fact that preceding its standing recovered under memo Ext.PW-1/A no disclosure statement of the accused victim was recorded rather the recitals of memo Ext.PW-1/A whereunder it stood recovered portray of the victim handing it over to the Investigating Officer. It appears that the purported voluntary handing over of Ext.P-1 by the victim to the Investigating Officer prodded the latter to dispense with the legal necessity enjoined upon him to preceding its recovery record the apposite disclosure statement of the accused/respondent with revelations occurring therein qua its place of hiding, keeping or concealing by him. Even the said recital qua the manner of recovery of Karchi Ext.P-1 under memo Ext.PW-1/A would yet not dispense with the enjoined legal necessity cast upon the Investigating Officer to preceding its recovery record the apposite disclosure statement of the accused especially when he in the Company of the Investigating Officer had led the latter to his house, factum whereof made it all the more incumbent upon the Investigating Officer to prior to his departing from the police station concerned to the house of the accused respondent elicit under an apposite recorded disclosure statement of the accused qua the place whereat it stood kept or concealed by him. Any omission on the part of the Investigating Officer to prior to its recovery under memo Ext.PW-1/A record the apposite disclosure statement of the accused/respondent with communications occurring therein qua the place of its hiding or keeping by him would not lend any hue of veracity or efficacy to the factum of its standing handed over to the Investigating Officer by the accused when both in the company of the witnesses visited the house of the accused/respondent nor would it constitute an efficacious manner of its recovery under Memo Ext.PW-1/A when bereft of an apposite disclosure statement preceding thereof standing recorded by the Investigating Officer. 12. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below 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 trial Court 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. 13. In view of the above, I find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.