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2017 DIGILAW 1424 (HP)

State Of H. P. v. Sanjeev Kumar

2017-12-20

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The instant appeal stands directed against the impugned judgement of acquittal recorded by the learned Chief Judicial Magistrate, Kangra at Dharamshala, District Kangra upon Crl. Case No. 77-II/2004, whereby, he pronounced an order of acquittal, upon, the accused qua the offences in respect whereof, they stood charged. 2. The brief facts of the case are that on 19.08.2004 at about 9.30 p.m the complainant, Sh. Ashwani Kumar was present in his house alongwith other members of the family. They are talking with a guest and were about to take the dinner when the accused armed with Dandas and Hockey sticks entered in the Courtyard of the complainant and started using filthy language. Accused Sandeep Kumar hit the complainant with hockey stick and the accused Ashok Kumar used the Danda to beat Rajiv Kumar. Accused Sanjeev Kumar gave a Danda blow to the wife of the complainant. The other two accused surrounded Sawarna Devi and she was also beaten. On hearing the cries of the complainant and other members of his family Moti Ram S/o Chamaroo, Surinder Nath, Bimla Devi and Gulshan reached there and they rescued the complainant and others. The matter was reported to the police and on completion of the investigation, into the offences, allegedly committed by the accused, the Investigating Officer concerned filed a report under Section 173 Cr. P.C. before the Court concerned. 3. Thereupon, the accused stood charged by the learned trial Court for theirs allegedly committing offences punishable under Sections 451, 147, 149, 323, 427 and 506 of the Indian Penal Code, 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, wherein, they pleaded innocence and claimed false implication. They choose not to lead any defence evidence. 5. The State of H.P. is aggrieved by the judgment of acquittal recorded, upon, the accused/respondents, by the learned Court below. The learned Addl. Advocate General, has concertedly and vigorously contended that the findings of acquittal recorded by the learned Court below, being not harbored upon a proper appreciation ''by it'' of the evidence on record rather theirs standing sequelled by gross mis-appreciation "by it" of the material evidence on record. The learned Addl. Advocate General, has concertedly and vigorously contended that the findings of acquittal recorded by the learned Court below, being not harbored upon a proper appreciation ''by it'' of the evidence on record rather theirs standing sequelled by gross mis-appreciation "by it" of the material evidence on record. Hence, he, contends that the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction besides concomitantly, appropriate sentence(s) being imposed upon the accused/respondent. 6. On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the learned Court below being based on a mature and balanced appreciation ''by it'' of the evidence on record, hence theirs not warranting any interference, rather theirs meriting vindication. 7. 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. 8. The learned Additional Advocate General has contended that the affording, by the learned trial Court vis-a-vis the accused, the benefit of doubt being hinged, upon untenable grounds besides is engendered, from, its irreverence to the gravity of evidence of probative vigour, hence necessitates interference by this Court. He has further argued that the findings of acquittal recorded upon the accused, for theirs allegedly committing offence(s) punishable under Sections 147, 148, 149, 341, 325 and 506 of the Indian Penal Code, being not anvilled, upon proper appreciation of evidence, as such, they necessitate interference by this Court. 9. The victims PW-2 and PW-7 supported the version qua the occurrence embodied in the F.I.R also the MLC prepared in their regard, by the doctor concerned stand proven by PW-1. However, even though on anvil, of, the aforesaid prosecution evidence, this Court would be constrained to reverse the findings of acquittal returned upon the accused (i) yet with the prosecution also leading into the witness box purported eye witness(es) to the relevant occurrence, who respectively deposed as PW-8 and PW-9, hence enjoined the latter to testify in harmony therewith. However, even though on anvil, of, the aforesaid prosecution evidence, this Court would be constrained to reverse the findings of acquittal returned upon the accused (i) yet with the prosecution also leading into the witness box purported eye witness(es) to the relevant occurrence, who respectively deposed as PW-8 and PW-9, hence enjoined the latter to testify in harmony therewith. However, PW-9 as purported eye witness, has completely reneged from his previous rendered statement, hence, this witness was declared hostile AND on permission being, accorded, to the learned Public Prosecutor, on a request made by him before the learned trial Court, to cross-examine this witness, yet in course thereof also he has not supported the prosecution case, thereupon it is to be concluded of the aforesaid purported independent witnesses, not, meteing succor to the genesis of the occurrence. The other ocular witness who testified as PW-8 has not rendered a version, wherefrom, it would be befitting to draw a firm inference, of, eye witness(es) to the alleged misdemonor(s) of the accused inflicting simple injuries on the person of the victim hence firmly sustaining them. Moreover, the apposite recovery memo comprised in Ex. PW-2/B, is, the incriminating piece of evidence, against, the accused. Normally, recovery of any weapon of offence, has, to occur, within the domain of Section 27 of the Indian Evidence Act, wherein for any effectuation of recovery of any weapon of offence, at, the instance of the accused by the Investigating Officer concerned, to hence acquire statutory vigour, enjoins the Investigating officer concerned to preceding his making the relevant recoveries, his recording a disclosure statement of the accused concerned. However, the Investigating Officer neither within the precincts of Section 27, of, the Indian Evidence Act hence recorded a disclosure statement, of, any of the accused concerned nor he proceeded to subsequent thereto hence effect the relevant recoveries. Contrarily, he for reason(s) hereafter stated rather inefficaciously/fictitiously prepared Ext. PW-2/B, with a recital therein qua PW-2 hading over "Danda" to him. The aforesaid incriminatory piece of evidence against the accused, yet stands canvassed by the learned Additional Deputy Advocate General, to be, not warranting disimputation of credence nor also it being open for this Court, to discard its probative vigour, given the accused after using it, leaving it at the site of occurrence, whereafter, they fled therefrom. The aforesaid incriminatory piece of evidence against the accused, yet stands canvassed by the learned Additional Deputy Advocate General, to be, not warranting disimputation of credence nor also it being open for this Court, to discard its probative vigour, given the accused after using it, leaving it at the site of occurrence, whereafter, they fled therefrom. Hence, he contends that thereupon PW-2 proceeded to handover "danda" to the Investigating Officer concerned. He also proceeds to contend that since the Investigating Officer concerned, not, within the domain of Section 27 of the Indian Evidence Act hence effectuating its recovery, hence, there was no legal necessity cast upon him to obey its mandate nor hence on its mandate standing infringed, would give any capital to the accused. However, the aforesaid submission warrants rejection, (i) as the aforesaid manner of effectuation of recovery of the purported weapon of offence, appears to be made by the Investigating Officer concerned, by his, actively circumventing the mandate of Section 27 of the Indian Evidence Act, (ii) whereas, with the aforesaid weapon of offence rather comprising the best incriminatory piece of evidence also when with respect to validity(s) of recovery thereof, apt provisions are encapsulated in the relevant Indian Evidence Act, (iii) hence, he was enjoined, to, for dispelling arousal of suspicion(s), with respect to the efficacy of the relevant recovery, hence, revere mandate thereof rather than his proceeding to engineer an ingenious method, to proceed to make recovery of weapon, of offence, in the manner he did under memo Ex.PW2/B The provisions of Section 27 of the Indian Evidence Act read as under: - "27. How much of information received from accused may be proved. -Provided that, when any fact is deposed to as is covered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 10. -Provided that, when any fact is deposed to as is covered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 10. For the reasons which have been recorded hereinabove, this Court holds that the learned Chief Judicial Magistrate has hence appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom, the analysis of material on record by him, does not, suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather he has aptly appreciated the material available on record. Consequently, with this Court concluding that recovery of Danda, not holding any vigour, it is apt to conclude that the prosecution has failed to establish that the Danda was used by the accused concerned, to inflict blows on the person of the victim/complainant. 11. In view of the above, I find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned trial Court be sent back forthwith. Personal and surety bonds, if any, stand cancelled and discharged.