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2017 DIGILAW 1191 (HP)

State of H. P. v. Pradeep Kumar

2017-10-25

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. Since, both the criminal appeal and criminal revision petition arise from a common judgment, rendered by the learned Sessions Judge, Hamirpur, H.P., thereupon both are liable to be disposed of by a common judgment. 2. Through criminal appeal No. 637 of 2008, the State of Himachal Pradesh assails the judgment of acquittal rendered on 9.6.2008 by the learned Sessions Judge, Hamirpur, HP, upon criminal appeal No. 22 of 2007, whereas criminal revision petition No. 159 of 2008 is instituted by the complainant, for begetting reversal of the findings of acquittal, pronounced upon the aforesaid criminal appeal, by the learned Sessions Judge. 3. The facts relevant to decide the instant case are that on 21.4.2003 at Government Senior Secondary School (Boys) Hamirpur, accused Pardeep Kumar did an obscene act by writing and signing there on the walls of the schools and intending to insult the modesty of complainant Neena Thakur, by exhibiting some object there on the walls of the school intending that the same shall be seen by the complainant Neena Thakur. Matter was reported to the Police and relevant FIR was registered. Police visited the spot and site map was prepared. Photographs of the spot were obtained. Handwriting of the accused and other persons were taken. Report of the Forensic Science Laboratory was obtained. After completion of the investigation, the present challan was prepared and presented in the Court. 4. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 5. The accused stood charged by the learned trial Court, for his committing offences punishable under Sections 294 and 509 of the IPC. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein the accused claimed innocence and pleaded false implication in the case. Thereafter, the accused examined four witnesses’ in defence. 6. Initially, the learned trial Court returned the findings of conviction upon the accused, however, in an appeal carried therefrom by the convict, before the learned appellate Court, the latter Court on an appraisal of evidence existing on record, returned findings of acquittal upon the accused/respondent. Thereafter, the accused examined four witnesses’ in defence. 6. Initially, the learned trial Court returned the findings of conviction upon the accused, however, in an appeal carried therefrom by the convict, before the learned appellate Court, the latter Court on an appraisal of evidence existing on record, returned findings of acquittal upon the accused/respondent. The State of H.P. and the complainant are aggrieved therefrom, hence respectively, through the instant appeal and the instant criminal revision petition, both the learned Additional Advocate General and the learned senior Counsel appearing for the complainant concertedly and vigorously contend qua the findings of acquittal recorded by the learned appellate Court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, they contend 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. 7. On the other hand, the learned senior Advocate appearing for the accused, has with considerable force and vigour, contended that the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation, by it, of the evidence on record and theirs not necessitating any 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 specimen hand writings and signatures, of, accused Pradeep Kumar, borne in Ext. PW9/1 to Ext.PW9/8, were sent, to, the hand writing expert concerned, for his making comparisons thereof, with, the graffiti, borne on photographs occurring in Ext. P1 to P7 for his thereafter making a clinching determination, with respect to the authorship of the graffiti, purportedly scribed on the walls of the school. The hand writing expert purveyed his opinion, comprised, in Ext. PW10/M and in Ext. PW10/N, wherein he graphically disclosed, of, the graffiti scribed on the walls of the school, in respect whereof photographs were collected, holding, absolute affinity with the specimen handwritings and the signatures of Pradeep Kumar, as borne in Ext. PW9/1 to Ext. PW9/8. 10. The hand writing expert purveyed his opinion, comprised, in Ext. PW10/M and in Ext. PW10/N, wherein he graphically disclosed, of, the graffiti scribed on the walls of the school, in respect whereof photographs were collected, holding, absolute affinity with the specimen handwritings and the signatures of Pradeep Kumar, as borne in Ext. PW9/1 to Ext. PW9/8. 10. The learned Additional Advocate General and the learned counsel appearing for the complainant with vigor contend, of the aforesaid echoings made in the report of the hand writing expert, hence constituting the best formidable evidence, for constraining the learned Sessions Court, to thereupon make a firm conclusion of the guilt of the accused qua the apposite charge, whereas his dispelling, its probative worth, has sequelled its pronouncing an erroneous order of acquittal upon the accused. 11. Be that as it may, before testing the submissions addressed before this Court by Mr. R.K. Sharma, the learned senior counsel and by Mr. Vivek Singh Attri, the learned Additional Advocate General, it is imperative to bear in mind, the fact, of the learned counsel appearing for the accused (i) not, during the course of exhibition/marks, being embossed upon the photographs carrying graffiti, hence protesting, of theirs’ not constituting the befitting material, for any apt comparison therewith being made, along with the admitted/specimen hand writings of the accused, (ii) thereupon the endeavour, here at, made by the learned counsel for the accused, of, with vague evidence existing on record with respect to the camera, wherefrom photographs, of the graffiti were clicked, thereupon not rendering the apposite photographs, amenable for their comparison being made with the admitted handwritings/signatures of the accused is rendered rudderless. Moreover, before proceeding, to deal with the submission addressed before this Court by Mr. R.K. Sharma, the learned senior counsel and by the learned Additional Advocate General, it is also imperative to allude to the trite factum, of the entire oral evidence, testified by the prosecution witness, making clear voicings, of the complainant (i) suspecting the accused to author the graffiti scribed on the walls of the school, however, no strength therefrom can be reared by the complainant, of thereupon, the accused being cogently proven to scribe the graffiti, nor thereupon it be apt to return findings of conviction against the accused. Also, (ii) any comparisons made by the complainant interse the purported admitted hand writings of the accused, vis-à-vis the photographs carrying the graffiti, purportedly, scribed on the walls of the school, also would be wholly insufficient, to beget a firm conclusion, of the guilt of the accused, (iii) conspicuously with the best evidence comprised in the report of the hand writing expert solitarily constituting the most vigorous probative evidence for, efficacious proof of the charge against the accused. 12. Be that as it may, the interse comparisons made by the hand writing expert, interse the photographs carrying the graffiti vis-a-vis the admitted specimen signatures/handwritings of the accused, whereafter he opined of the accused authoring the graffiti, is also a frail piece of evidence, for making a firm conclusion of the guilt of the accused, given the expert in his cross-examination, revealing his acquiescings, to the suggestions put to him, of, (i) on writings being scribed on walls, the angle of hand being at 90 degree, whereas while writing on pad, the angle would be 90 degree, also his deposing, on scribings being made on the wall, the movement of the arm being free. (ii) For the opinion of the hand writing expert, to carry an absolute probative gravity, also for it being concluded to hold the utmost precision, it was incumbent upon the Investigating Officer concerned, to ensure of the accused “scribing” under the supervision of the Investigating Officer, besides under the supervision of the Magistrate concerned “upon the walls”, graffiti bearing affinity vis-à-vis the one carried in the exhibited photographs, whereafter, the Investigating Officer was enjoined to click photographs thereof AND thereafter, was enjoined to send the aforesaid photographs, to the hand writing expert concerned, for his making comparisons thereof, with the admitted writings/signatures, of, the accused borne in Ext. PW9/1 to Ext. PW9/1 to Ext. PW9/8, emphatically when the aforesaid collections would ensure (i) free movement of the hand of the accused upon the wall, whereat, he purportedly scribed the graffiti, (ii) significantly also with the expert, in his cross-examination, unveiling, of the movement of the hand being free upon scribings being made upon walls, (iii) thereupon with the accused in the aforesaid manner, making scribings upon the wall, with an alike free movement of hand, would ensure elicitations of a firm pronouncement from the hand writing expert concerned, qua authorships thereof (iv) no room for any vulnerablities for want thereof, seeping into his report, thereupon his report being construable to be both precise and accurate, with respect to the authorship of the graffiti. (v) Absence of collections, of, graffiti, in the aforesaid manner preceding whereof it stood scribed upon the wall by the accused under the supervision of a competent officers, render the comparisons made by the expert interse the graffiti carried on the photographs vis-à-vis the handwritings/signatures of the accused, not, to be construable to be either apt nor any opinion formed thereon, being construable to be either precise or firm, nor any implicit reliance being imputable thereon. 13. For the reasons which have been recorded hereinabove, this Court holds that the learned appellate Court 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 appellate Court does not suffer from perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 14. Consequently, there is no merit in the instant criminal appeal and in the criminal revision petition which are accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.