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Himachal Pradesh High Court · body

2017 DIGILAW 1074 (HP)

State of Himachal Pradesh v. Ashok Kumar

2017-09-16

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Since, both these appeals arise from a common judgment rendered on 21.08.2007 in Criminal Appeal No. 26-S/10 of 2006 and in Criminal Appeal No. 33-S/10 of 2006, by the learned Sessions Judge, Shimla, hence, they are decided by a common judgment. 2. The instant appeals stand directed against the impugned judgment of acquittal recorded upon the aforesaid by the learned Sessions Judge, Shimla. 3. The brief facts of the case are that on 6.9.2005 complainant Gopal Singh has parked his vehicle No. HP-10-0483 at Nav Bahar Parking, Sanjauli at about 4.30 p.m. and after having locked the same and removing the papers, he had left to his quarter at Pirta Niwas. On 7.9.2005 at about 10.00 a.m when he came to take his vehicle at Nav Bahar Car Parking, the vehicle was found missing. He searched his vehicle at Shimla and other station but in vain. Therefore, on 9.9.2005 complainant met police officials at Sanjauli and made complaint Ext.PW-7/A on which F.I.R Ext.PW-5/A was registered. Spot map Ext.PW-5/B was prepared. Complainant produced documents and key of the vehicle which were taken into possession vide memo Ext.PW-1/A. On 14.9.2005 ASI Bhag Singh and ASI Virender Singh of C.I.A staff Patiala came to P.P. Sanjauli in connection with case F.I.R. No. 504/05 under Section 379, 411 IPC that vehicle No. HP-10- 0483 had been nabbed from accused Rajesh and Sanjeev at Patiala on 8.9.2005. Therefore, on 16.9.2005 ASI Jai Gopal Incharge P.P. Sanjauli alongwith HHC Jeet Ram and complainant Gopal Chhajta rushed to Patiala and got transferred custody of accused Sanjeev and Rajesh from case F.I.R. No. 504/05 P.S Patiala to present case F.I.R. During interrogation, accused disclosed that after having opened the lid of petrol tank of car, they had got prepared a duplicate key from Sikh gentleman and on 20.09.2005 accused Sanjeev and Rajesh got the place of theft identified, qua which memo Ext.PW-4/A was prepared. After collecting all the inculpatory evidence(s) and after completing all codal formalities besides upon conclusion of investigation(s) into the offences, allegedly committed by the accused, thereupon the Investigating Officer concerned presented the challan before the learned trial Court. 4. A charge stood put to the accused by the learned trial Court, for theirs committing offences punishable under Sections 379 IPC, to which they pleaded not guilty and claimed trial. 5. 4. A charge stood put to the accused by the learned trial Court, for theirs committing offences punishable under Sections 379 IPC, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 12 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. They did not choose to lead any defence evidence. 6. On an appraisal of evidence on record, the learned trial Court returned findings of conviction upon them with respect to the charges put to them “whereas” the learned Sessions Judge, Shimla, returned findings of acquittal upon the accused. 7. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Court below standing not based on a proper appreciation, by it, of evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction. 8. The learned counsel(s) appearing for the respondents also with equal considerable force and vigour contend qua the findings of acquittal recorded by the Sessions Court 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. The best incriminatory evidence available with the prosecution, for sustaining the charge is comprised in Ext.PW- 10/A, wherein recitals purportedly occur of the accused while occupying stolen vehicle bearing No. HP-10-0483, theirs being arrested by the police officials of the Punjab Police and also thereafter the stolen vehicle being impounded. However, the trite factum of Ext.PW-10/A purportedly embodying therein the apt recitals, in respect of the accused occupying the stolen vehicle, cannot, at this stage be imputed any sanctity or veracity, given all its contents being scribed in Punjabi. Ext.PW-10/A is also merely a photocopy of the original. Significantly also its author has not stepped into the witness box nor hence obviously has not proven the recitals occurring therein. Ext.PW-10/A is also merely a photocopy of the original. Significantly also its author has not stepped into the witness box nor hence obviously has not proven the recitals occurring therein. Apart therefrom there is no communication in the verdict recorded by the learned trial Magistrate that at the time of, its, exhibition its contents being explicated to the Court, by, a person well conversant in Punjabi also exhibition thereof occurring in the presence of the learned defence counsel, who, after understanding authentic translation(s) thereof from Punjabi to Hindi, his permitting its exhibition. Lack of aforesaid pronouncement(s) in the verdict of the learned trial Magistrate, constrains this Court to conclude that its exhibition being a mere sequel of both the learned Public Prosecutor concerned and of the learned defence counsel, importantly also of the learned trial Magistrate, all of whom, hence perfunctorily, without understanding its contents besides its being not proved by its author nor an authenticated translated copy thereof being placed on record yet, proceeded to emboss an exhibition mark thereon. The aforesaid recitals borne in the best incriminatory evidence, for purportedly proving the incriminatory roles of the accused in the relevant occurrence, are, per se thereupon rendered unreadable nor with its author proving its recitals also renders it to be both irrelevant besides inadmissible. 11. Be that as it may, the learned Additional Advocate General has contended with vigour, that, thereafter with the custody of the stolen vehicle being handed over by the official(s) of Punjab Police, to, the official(s) of Police Station Dhali, thereupon the trite factum of the identity of the accused besides their role in the ill-fated occurrence standing firmly established. However, the aforesaid espousal warrants its rejection. The learned Additional Advocate General was enjoined to prove the trite factum of the accused standing nabbed by the Punjab Police at Patiala besides was enjoined to prove qua thereat theirs occupying the stolen vehicle. However, the aforesaid espousal warrants its rejection. The learned Additional Advocate General was enjoined to prove the trite factum of the accused standing nabbed by the Punjab Police at Patiala besides was enjoined to prove qua thereat theirs occupying the stolen vehicle. Since in sequel whereto(s), an, F.I.R. was lodged with police Station Patiala, thereupon the prosecution was also enjoined to prove of thereafter the accused being subjected to face trial before the learned trial Magistrate, Patiala besides theirs on conclusion thereof, suffering a conclusive mandate of conviction, whereas proof in the aforesaid regard being abysmally amiss, hence cumulatively therewith also with the contents of Ext.PW-10/A standing not proved in accordance with law, thereupon the fact of custody of the stolen vehicle also of the accused being handed over by the officials of the Punjab Police to the official(s) of the Police Station Dhali, cannot, clinchingly establish the incriminatory role of the accused. Contrarily absence of the aforesaid best evidence renders the factum of the custody of the accused being handed over by the officials of Punjab Police vis-à-vis officials of Police Station Dhali to be susceptible to skepticism also envelopes a shroud of doubt in respect of the incriminatory role of the accused, benefit(s) whereof ought to ensue vis-à-vis them. 12. The learned Additional Advocate General also depends upon the testimony of one PW-8, who, has testified in respect of his, on, a date prior to the ill fated occurrence, noticing, the accused at his Dhaba also in consonance with his previous statement recorded in writing he has disclosed that he overheard each of the accused calling each other by their respective names, thereupon his being equipped with the requisite knowledge to proceed to identify them in the Police Station concerned also his hence proceeding to identify the accused in Court hence his testification being imputed credence also thereupon the identity of the accused being established.. However, apparently, his previous statement stands recorded, on 29.9.2005, recording whereof occurred after immense delay, since the lodging of the F.I.R., also with immense time elapsing, since the police official(s) of the Police Station Dhali took over custody of the accused on 14.9.2005 from the official(s) of Punjab Police thereupon the belatedly recorded previous statement in writing of PW-8 is bereft of vigour Since the custody of the accused was prior thereto received on 14.9.2005, by, official(s) of Police Station Dhali, from the officials of Punjab Police, cumulatively hence the effect of the aforesaid delay, is of (a) PW-8 in connivance with the police official(s) making disclosure(s) only in respect of the name(s) of the accused, whereas his omitting to describe their key characteristic features, omission(s) in his describing their key characteristic features, renders all emanations’ occurring in his previous statement in writing besides in his testification rendered before the learned trial Magistrate, to be construable to stand generated, by, the Investigating Officer concerned, apprising PW-8 about the identity(s) of the accused, whereafter he proceeded to identify the accused in the Police Station. (b) The aforesaid inference is aptly fortifingly drawable from PW-8 proceeding to in his testification borne in his cross-examination make a disclosure therein, of, his identifying the accused, while theirs being incarcerated at Police Station Dhali. Consequently, with this Court drawing an inference that the identity of the accused being unveiled to PW-8 only by the Investigating Officer concerned, whereas his prior thereto holding, no, knowledge of the respective persons concerned, thereupon the aforesaid manner of identification of accused by PW-8, cannot, be accepted by this Court, for, hence constraining a firm conclusion that the identity(s) of the accused in the relevant occurrence being firmly established. 13. The learned Additional Advocate General has also relied upon the identification, of, the site of occurrence, by the accused, in respect whereof Ext.PW-4/A stood prepared, on anvil whereof, he, contends, of, the prosecution firmly establishing the incriminatory role of the accused. However, a thorough scanning of the entire record underscores qua prior thereto, no, signatured disclosure statement(s) of the respective accused standing recorded by the Investigating Officer thereupon, omissions thereof render Ext.PW-4/B to be bald, insignificant besides inadmissible in evidence. 14. However, a thorough scanning of the entire record underscores qua prior thereto, no, signatured disclosure statement(s) of the respective accused standing recorded by the Investigating Officer thereupon, omissions thereof render Ext.PW-4/B to be bald, insignificant besides inadmissible in evidence. 14. For reiteration, since the preparation of signatured disclosures statement(s) of the respective accused, by the Investigating Officer, prior to theirs, identifying the site whereat, the stolen vehicle was parked besides wherefrom it was stolen by them, in respect whereof Ext.PW-4/A stood prepared, was a statutorily enjoined imperative, for hence Ext.Pw-4/A acquiring sanctity, whereas, evidently prior thereto, no, apposite signatured disclosure statement(s) of the respective accused by the Investigating Officer standing not evidently recorded by the Investigating Officer also galvanizes a further inference from this Court, of, Ext.PW-4/A being unamenable for any reliance being imputable thereto. Conspicuously with its hence infringing the mandate of Section 27 of the Indian Evidence Act. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge 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 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. 16. 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 trial Court be sent back forthwith.