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2017 DIGILAW 118 (HP)

Davinder Singh v. State of Himachal Pradesh

2017-03-04

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. Since both these appeals arise out of a common judgment, therefore, they are being disposed of by a common judgment. The instant appeals are directed against the findings of conviction recorded by the learned Additional Sessions Judge, (Fast Track Court) Kangra at Dharmshala, H.P. against the accused-appellants whereby, the learned trial Court convicted the accused-appellants for theirs committing offences punishable under Section 326 and 307 of the IPC besides sentenced them as under:- S. No. Offences Sentence imposed 1. Section 326 of the IPC To undergo rigorous imprisonment for five years each and to pay a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for six months. 2. Section 307 of the IPC To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for six months. All the sentences are ordered to run concurrently. 2. Brief facts of the case are that on 13.4.2003, one Sanjiv Kumar, Rajnish Kumar and Ravinder Singh were participating in the marriage in village Tajwan at the house of one Babu Ram. At about 10 p.m., all these three accompanied by their two friends Balwinder Singh and Surinder Singh went towards Tajwan Khud from where water flow in a kuhl had been diverted by Chain Singh, father of Sanjiv Kumar and Rajnish Kumar to their fields for irrigation purpose, to see as to whether fields were getting irrigated or not, Sanjiv Kumar was going ahead all of them who was attacked by Davinder Kumar with a ‘drat’ on account of which he suffered injuries and fell on the ground. He cried for help. At this, his brother Rajnish and uncle Ravinder Kumar and two other persons accompanied by them Balwinder Singh and Surinder Singh rushed to the spot. When Rajnish Kumar reached near Sanjiv Kumar he was attacked by Sushil Kumar with a dagger and immediately Ravinder Kumar who also reached was also attacked by both the accused and on account of that all the three i.e. Sanjiv Kumar, Rajnish Kumar and Ravinder Kumar suffered injuries with drat and dagger and Sanjiv Kumar had fell unconscious. Ravinder Kumar took Sanjiv Kumar and Rajnish Kumar to the house of Babu Ram where the marriage ceremony was going on, which was near the spot of occurrence. Ravinder Kumar took Sanjiv Kumar and Rajnish Kumar to the house of Babu Ram where the marriage ceremony was going on, which was near the spot of occurrence. In the meantime, some other people had also assembled there. From the house of Babu Ram, the injured were shifted to Sehgal Hospital at Pathankot where they were provided medical aid. The doctor, attending upon them, sent telephonic intimation to the police station informing that three injured persons have been brought to the hospital. At this, the police reached the hospital where the statement of Chain Singh who is father of both injured Sanjiv Kumar and Rajnish Kumar and brother of Ravinder Kumar was recorded. The statement was sent to the police station on the basis of which FIR was registered. The police started investigation. During investigation the accused were arrested. Both the accused on different dates made disclosure statements and as per disclosure statement of accused Davinder Kumar a ‘drat’ was recovered and at the instance of accused Sushil Kumar a dagger was recovered. The investigation in the matter was carried out. The clothes of injured were also taken into possession during investigation. As per the investigation conducted the police came to the conclusion that the accused had voluntarily administered beatings with sharp edged weapons to Sanjiv Kumar, Rajnish Kumar and Ravinder Kumar and on account of those beatings Sanjiv Kumar in addition to simple injuries also suffered grievous injuries. Rajnish Kumar and Ravinder Kumar were also found having suffered injuries with sharp edged weapons which were described to be dangerous to life. It was found that the beatings were given in such a way that the accused knew it that death could be caused. Thereby the police prepared the challan for offence under Sections 326 and 307 read with Section 34 IPC. 3. The accused-appellant were charged by the learned trial Court for theirs allegedly committing offences punishable under Sections 326 and 307 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 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 and examined one witness in their defence. 5. 4. In order to prove its case, the prosecution examined 11 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 and examined one witness in their defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the appellants-accused for theirs committing offences punishable under Sections 326 and 307 read with Section 34 IPC. 6. The learned counsel appearing for the appellants has concertedly, and, vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not based on a proper appreciation of the evidence on record, rather, theirs standing se-quelled by gross mis-appreciation by it of the material on record. Hence, he, contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. The learned Deputy Advocate General has with considerable force and vigour contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather 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. Co-convict Davinder Singh with the user of sickle Ext.P-2 recovered under memo Ext.PW-3/F delivered a blow upon the person of the victim/injured PW-5, in pursuance whereof PW-5 sustained injuries on the occipital region. The Doctor concerned in sequel to his holding PW-5 to medical examination prepared MLC Ext.PW-1/A where within disclosures are held (a) PW-5 suffering an injury on the occipital region; (b) the occurrence thereon of the aforesaid injury, endangering the life of PW-5. A certificate making the aforesaid pronouncement also stands embodied in Ext.PW-1/D. Moreover, PW-1, the Doctor concerned has with lack of equivocation testified qua the injuries noticed by him to be occurring on the occipital region of PW-5 being causable thereon by user thereon of sickle Ext.P-2. A certificate making the aforesaid pronouncement also stands embodied in Ext.PW-1/D. Moreover, PW-1, the Doctor concerned has with lack of equivocation testified qua the injuries noticed by him to be occurring on the occipital region of PW-5 being causable thereon by user thereon of sickle Ext.P-2. Moreover, the infliction of injuries on the occipital region of PW-5 stand pronounced by him to stand gained thereon within six hours, since PW-1 holding/ subjecting PW-5 to medical examination whereupon the timing whereat, the PWs depose qua PW-5 suffering an injury by user of sickle Ext.P-2 by co-convict upon PW-5 stands invincibly connected therewith, whereupon the testifications of prosecution witnesses who rendered an ocular account qua the occurrence attain intra se corroboration therefrom, hence enhancing an inference qua thereupon the testimonies of prosecution witnesses qua the ill-fated occurrence erupting at the relevant place besides at the time pronounced in the apposite FIR holding an entrenched aura of credibility. 10. Moreover, with the user of dagger Ext.P-2, recovered under memo Ext.PW-3/H, co-convict Sushil Kumar delivered blows on the abdomen of victim/injured PW-4 Rajnish Kumar, injury whereof thereon stands pronounced in the apposite MLC comprised in Ext.PW-1/C, also it stands pronounced therein qua it endangering the life of PW-4. The Doctor concerned in his apposite MLC prepared qua PW-4 divulges therein qua the injuries noticed by him to be occurring on the person of PW-4 standing caused thereon with the user of dagger, also he has pronounced qua theirs standing gained thereon within six hours since his holding the person of PW-4 to medical examination whereupon the timing qua the eruption of the ill fated duel, pronounced in the testimonies of the prosecution witnesses hence falls in alignment therewith or holds tandem with timing of its occurrence as disclosed in the apposite F.I.R. 11. The aforesaid evidence occurring in the testification of PW-1 besides the testifications of recovery witnesses to dagger Ext. The aforesaid evidence occurring in the testification of PW-1 besides the testifications of recovery witnesses to dagger Ext. P-1 and qua sickle Ext.P-2 respectively recovered under memos Ext.PW-3/F and Ext.PW-3/H wherein they candidly testify in proof of efficacious recoveries of the aforestated weapons standing thereunder effectuated besides with recovery of dagger Ext.P-1 and of sickle Ext.P-2 standing preceded by disclosure statements respectively recorded by the convicts/accused, disclosure statements whereof stand comprised in disclosure statements embodied in Ext.PW3/J and Ext.PW3/E, thereupon renders the effectuation of recovery of sickle and of dagger respectively under memos Ex.PW-3/F and Ex.PW-3/H standing construable to stand proven to stand validly effectuated whereupon hence the aforesaid incriminatory pieces of evidence acquire an aura of admissibility, thereupon it can stand invincibly concluded qua the prosecution hence proving the user of sickle and of dagger respectively by convicts/accused respectively upon injured/victims besides when it stands pronounced by PW-1 qua the injuries occurring on the persons of PW-4 and PW-5 being causable by respective user of the aforesaid weapons of offence on the respective portions of the body of the victims, prods a conclusion qua the prosecution succeeding in proving the charge. 12. The injured/victims PWs-4 and 5, respectively in their depositions occurring in their respective examination-in-chief vis-a-vis their respective cross-examinations disclose a version qua the occurrence bereft of any vice of any major inter se contradictions, rather each in their respective depositions underscore qua theirs with a paragon virtue of inter se harmony, encapsulating therein a version qua the occurrence, also their respective depositions emphatically underline qua their deposing with intra se harmony qua the ill-fated occurrence whereupon it is befitting to conclude qua their respective depositions qua the occurrence not suffering from any apparent taint or blemish of any grave inter se or intra se contradictions. Therefore, it is concomitantly apt to conclude qua their account qua the occurrence being not amenable to dis-imputation of credence. Moreover, PW-6 and PW-8, eye witnesses to the occurrence, both with aplomb bereft of any taint of any stark inter se contradictions occurring in each of their respective testifications besides with intra se harmony, they render an ocular account qua the occurrence whereupon they hence lend vigorous corroboration to the testifications of injured victims PW-4 and PW-5. Moreover, PW-6 and PW-8, eye witnesses to the occurrence, both with aplomb bereft of any taint of any stark inter se contradictions occurring in each of their respective testifications besides with intra se harmony, they render an ocular account qua the occurrence whereupon they hence lend vigorous corroboration to the testifications of injured victims PW-4 and PW-5. In sequel thereto given the testifications of injured/victims receiving corroboration from independent eyewitnesses to the ill-fated occurrence besides with an inference standing erected here-before qua the Investigating Officer respectively at the instance of the co-convicts evidently effectuating valid efficacious recoveries of the relevant weapons of offence, user whereof on the persons of victims/injured concerned stands proven by PW-1, fosters an inference qua the prosecution succeeding in proving its case. 13. For the reasons which stand recorded hereinabove, this Court holds that the learned trial Court apart from the facets afore-stated 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 gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 14. Consequently, this Court does not deem it appropriate to reverse the findings of conviction pronounced by the learned trial Court. In aftermath, this Court proceeds to maintain the same. At this stage, the learned counsel appearing for convict/accused Sushil Kumar submits that co-convict/accused standing physically incapacitated to move whereupon he contends qua a lenient view being taken by this Court in affirmation of the sentence of imprisonment imposed upon him by the learned trial Court. Also he prays with about 11 years elapsing since the recording of the verdict of conviction upon him thereupon also the aforesaid constituting a mitigatory circumstance for constraining this Court to reduce the sentence of imprisonment as stands imposed upon co-accused Davinder Kumar by the learned trial Court. The submission stands accepted. Consequently, the sentence of imprisonment of five years imposed upon him under the impugned verdict recorded by the learned Trial Court, is modified to a term of three years. He is also directed to pay a fine constituted in a sum of Rs. 5000/- in addition to the fine imposed upon him by the learned trial Court, in default whereof he shall further undergo simple imprisonment of one month. He is also directed to pay a fine constituted in a sum of Rs. 5000/- in addition to the fine imposed upon him by the learned trial Court, in default whereof he shall further undergo simple imprisonment of one month. Significantly also since about 11 years stand elapsed since the recording of a verdict of conviction qua co-convict Sushil Kumar by the learned trial Court, consequently the sentence of imprisonment of five years as stands imposed upon him by the learned trial Court is modified to a sentence of imprisonment of four years. He is also directed to pay a fine constituted in a sum of Rs. 5000/- in addition to the fine imposed upon him by the learned trial Court, in default whereof he shall further undergo simple imprisonment of one month. 15. Consequently, the findings of conviction recorded by the learned trial Court against the convicts stand affirmed and maintained. However, the sentence imposed upon the convicts/accused stands modified in the aforesaid terms. Accordingly, both the aforesaid appeal stands disposed of. 16. The registry is directed to forthwith prepare the committal warrants in conformity with this judgment. The period of detention, if any, undergone by the convicts-appellants herein during the investigation, inquiry or trial of the case and before the date of conviction, is ordered to be set off from the sentence of imprisonment imposed upon them by this Court. Records be sent back forthwith.