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Himachal Pradesh High Court · body

2017 DIGILAW 153 (HP)

State of H. P. v. Mahinder Singh

2017-03-09

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment of 8.8.2008 rendered by the learned Sessions Judge, Kinnaur at Rampur Bushehar, H.P camp at Reckongpeo in Criminal Appeal No. 02 of 2007 whereby he while reversing the verdict recorded by the learned Chief Judicial Magistrate, Kinnaur at Reckongpeo, acquitted the respondent (for short “accused”). 2. Brief facts of the case are that the Complainant Shri Khojeshwar Singh is the conductor with HRTC and on 30.11.2003 he was deputed to cater Kaza-Shimla Bus bearing No. HP-25-0763. Shri Neel Kamal was the driver of the bus. At about 9.00 p.m when the aforesaid bus was reached Tapri stop accused boarded the bus. When the bus reached near Piwa Stone Crusher plant the complainant asked the accused for tickets, the accused started quarrelling with him and then slapped him. In this assault, the bag containing cash and tickets held by the complainant fell down. The driver of the bus drove the vehicle back to the Police Post, Tapri where the complainant informed the Choki incharge about the incident. On the complaint, the matter was sent to the police station, Bhawanagar for registration of the case and FIR stands registered. 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. 3. Notice of accusation stood put to the accused by the learned trial Court qua his committing an offence punishable under Section 353 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 6 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 claimed false implication. However, he did not choose to lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction qua the accused. In an appeal preferred therefrom by the respondent herein before the learned First Appellate Court, the latter Court while reversing the verdict recorded by the learned Chief Judicial Magistrate, Kinnaur at Reckongpeo, acquitted the respondent. 6. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction qua the accused. In an appeal preferred therefrom by the respondent herein before the learned First Appellate Court, the latter Court while reversing the verdict recorded by the learned Chief Judicial Magistrate, Kinnaur at Reckongpeo, acquitted the respondent. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned first Appellate 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 warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction. 7. The learned counsel appearing for the respondent/accused has with considerable force and vigor contended qua the findings of acquittal recorded by the learned first Appellate Court standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating 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 accused occupied bus bearing registration No.HP-25-0763 bound from Kaza to Shimla. The FIR embodied in PW-6/A encloses there within a narrative qua the relevant bus whereon, the complainant stood engaged as a conductor, arriving at Tapri bus stop at 9 p.m. whereat some passengers on board the relevant bus alighted therefrom also thereat others boarded it, whereupon the complainant proceeded to distribute tickets to the passengers who had boarded the bus at Tapri and on his reaching seat No.2, his request to the accused to produce before him the tickets for facilitating his traveling in the bus as a passenger stood responded to by the accused by the latter proceeding to slap him. 10. The driver of the relevant bus drove it to police post Tapri whereat the complainant informed the Incharge, Police Post concerned about the incident also thereat the accused stood produced by the complainant. 11. 10. The driver of the relevant bus drove it to police post Tapri whereat the complainant informed the Incharge, Police Post concerned about the incident also thereat the accused stood produced by the complainant. 11. The learned first Appellate Court on anvil of the hereinafter recorded reasons had dispelled the testimonies of the ocular witnesses to the occurrence: (a) There occurring a delay in the lodging of the apposite FIR arising from the factum qua despite the complainant on 30.11.2003 under an application comprised in Ex.PW-1/A reporting the relevant incident to the police post concerned, the latter registering upon the version encapsulated therein, the apposite FIR embodied in Ex.PW-6/A whereupon it construed the version occurring therein to be construable to be antitimed also constrained an inference from it qua the version embodied therein standing afflicted with a vice of active premeditation or prevarication whereupon it concluded qua it standing bereft of credence especially when the illaqua Magistrate whereto whom the apposite FIR under the provisions held in Section 157(1) Cr.P.C, provisions whereof stand extracted hereinafter, stood hence enjoined to forthwith besides with utmost promptitude since its lodging, transmitted, for thereupon constraining an inference qua it standing bereft of any taints whereas with enunciations made by the Illaqua Magistrate in Ex.PW-6/A reflecting qua his impromptly beyond 24 hours vis-à-vis the application of the complainant qua the occurrence embodied in Ex.PW-1/A, receiving a copy thereof belatedly on 2.12.2003 at 10.00 a.m., obviously stemming a derivative qua the version held therein being construable to be ante timed hence concocted thereupon rendering jettisoned the entire genesis of the prosecution case. “157. “157. Procedure for investigation- (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstance of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that- (a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.” The aforesaid reason, as propounded by the learned First Appellate Court, to sap the vigor of the genesis of the prosecution embodied in PW-6/A apparently staggers conspicuously with a visible display qua the defence acquiescing qua the occurrence embodied in Ex.PW-6/A, acquiescence whereof, palpably stands unfolded in the latter part of the cross-examination to which the complainant stood subjected to by the defence counsel, where within upsurgings occur qua in course thereof the learned defence counsel purveying to him a suggestion couched in an affirmative phraseology holding unveilings qua the accused tendering an apology to the complainant also his beseeching him to record a compromise with him qua the relevant occurrence, suggestions whereof elicited from PW-1 a response in the affirmative. With the defence hence acquiescing to the inculpatory role of the accused in the alleged occurrence thereupon the factum of any delay in recording of the apposite FIR on 1.12.2003 qua an incident which occurred on 30.11.2003 also effects, if any, of the apposite delay, if any, on the part of the investigating Officer to “forthwith” since the preferment by the complainant of an application held in Ex.PW-1/A, register an FIR besides in sequel thereto “forthwith” make dispatch of its copy to the Illaqua Magistrate besides concomitant taints beclouding the version encapsulated in the FIR, are all in their entirety rendered inconsequential. Also thereupon the identity of the accused in the relevant occurrence stands invincibly established. Moreover, an inference qua the identity of the accused standing firmly established stands enhanced by the factum of the learned defence counsel while holding to PW-1 to cross-examination not concerting to falsify the version embodied in the FIR qua after the relevant inculpatory incident occurring inside the bus wherein an incriminatory role stands ascribed qua the accused, the driver of the relevant bus, maneuvering it to police Post Tapri also thereat the informant producing the respondent before the Incharge of the Police post concerned. Be that as it may, even if minimal contradictions or embellishments sprout inter-se the version embodied in application borne on Ex.PW-1/A vis-à-vis PW-6/A also with PW-1 deposing qua in the relevant incident, his coat begetting tearing whereas the torn coat of the informant remained un-produced before the police thereupon rendering purportedly prevaricated the version propounded in the FIR also cannot ipso facto belie the effect of the relevant acquiescence aforesaid made by the defence. (b) The learned First Appellate Court pronounced an order of acquittal upon the respondent for lack of proof qua his at the relevant time of occurrence standing not proven to be inebriated. (b) The learned First Appellate Court pronounced an order of acquittal upon the respondent for lack of proof qua his at the relevant time of occurrence standing not proven to be inebriated. Even though proof qua the aforesaid factum remains unadduced, comprised in the apposite report pronouncing upon the inebriated condition of the accused at the relevant time, standing not adduced by the P.P concerned before the learned trial Court, nonetheless insistence of proof qua the aforesaid factum was neither necessary nor warranted its elicitation from the prosecution, nor proof or non proof thereof weans the effect of the aforesaid acquiescences made by the defence qua the accused slapping the complainant significantly when it stood not reared as a defence within the ambit of the statutory exceptions to criminal liability. 12. The crux of the above discussion is that the appeal is allowed and the impugned judgment rendered by the learned first Appellate Court whereby it recorded findings of acquittal qua the accused stands reversed and set aside and the judgment of conviction and sentence pronounced by the learned trial Court is maintained and affirmed. Accordingly, the respondent/accused stands convicted for the offence punishable under Section 353 of the Indian Penal Code. The judgment of the learned trial Court in its entirety be forthwith put into execution. Records be sent back forthwith.