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2017 DIGILAW 204 (HP)

State Of Himachal Pradesh v. Ramesh Chand

2017-03-17

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral)—The instant appeal stands directed against the impugned judgment of acquittal recorded by the learned Additional Chief Judicial Magistrate, Kandaghat, District Solan, H.P. whereby he pronounced an order of acquittal qua the accused qua the offences allegedly committed by him. 2. The brief facts of the case are that on 26.8.2003, Smt. Promila Pardhan Gram Panchayat Kahla informed the Police telephonically at about 9.20 p.m. that the accused has given beatings to Hari Chand. After receiving the information, the police party went to the place of incident where Hari Chand complainant recorded his statement. The complainant told to the police that at about 9.00 p.m. the accused came to his house and requested him for making a telephone call. His wife has handed over the apparatus to the accused through window and the accused started dealing the requisite number. The accused could not connect the number so he asked the wife of the complainant to dial the requisite number then his wife told him that she could not dial the number in darkness. On hearing this, the accused became agitated and he put down the telephone apparatus and started hurling filthy abuses to him. He asked the accused to not hurl filthy abuses to him from the room in which he was sitting with his grand son but the accused entered into the room with a stick in his hand and gave blows on the complainant. He also gave a blow with a stick to the complainant. On hearing the noise, his wife Parwati and daughter-in-law Nisha came to the room and rescued him from the clutches of the accused. The statement of the complainant was sent to the police station through constable Ravinder Lal and on the basis of which F.I.R. was registered and investigation started. During investigation, the police recovered the blood soaked shirt of the complainant and 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. A charge stood put to the accused by the learned trial Court for his committing offences punishable under Sections 451, 325, 504 and 506-I of the IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 7 witnesses. 3. A charge stood put to the accused by the learned trial Court for his committing offences punishable under Sections 451, 325, 504 and 506-I of the IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 7 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 pleaded innocence and claimed false implication. He did not choose to lead evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial 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 has with considerable force and vigour contended qua the findings of acquittal recorded by the Court below 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 victim/injured, as testified by PW-5 who proved Ext.PW-5/A, received on his person, the injuries delineated therein also PW-5 has proven qua the injuries displayed therein being causable by user of stick/Danda Ext.P-3 besides PW-5 has made a disclosure in his deposition qua the injury suffered on the left ear of the victim sequelling its auditory impairment. The deposition of the aforesaid PW when read in tandem with the disclosure qua the occurrence rendered by PW-1 in his examination in chief besides by PW-2 conspicuously when both testify qua the version, bereft of any inter se contradictions occurring in their respective examinations in chief vis-a-vis their respective cross-examinations contrarily when they depose with intra se harmony thereupon the prosecution case warranted its success also qua the charge the learned trial Magistrate stood enjoined to pronounce an order of conviction against the accused. 10. 10. Dehors both PW-1 and PW-2 deposing with intra se harmony qua the relevant injuries standing suffered by the victim by user of stick/Danda Ext.P-3 upon him by the accused, it was also imperative for the prosecution to prove qua its recovery standing validly effectuated. However, in determining the factum of the Investigating Officer concerned effectuating a valid and efficacious recovery of Ext.P-3, an allusion to the apposite memo is essential. The apposite recovery memo held in Ext.PW-3/A makes a communication qua the accused/respondent handing it over to the Investigating Officer also a thorough scanning of the entire record underscores qua prior thereto no disclosure statement of the accused standing recorded. 11. The Investigating Officer concerned stood enjoined with a dire legal necessity to prior to effectuate recovery of weapon of offence, his during the course of holding the accused to custodial interrogation his recording the disclosure statement of the accused, holding unfoldments therein qua the place of its concealment or hiding by him, necessity whereof stands cornered within the domain of Section 27 of the Indian Evidence Act, 1872 provisions whereof stand extracted hereinafter also therein it stands propounded qua thereupon an admissible besides a relevant custodial confessional statement of accused assuredly making its emergence in sequel whereto the subsequent recovery of the weapon of offence at the instance of the accused would hold immense evidentiary clout, contrarily when without preceding thereto, the apposite statutorily warranted custodial confessional disclosure statement of the accused remained unrecorded, thereupon any bald recovery of any weapon of offence by the investigating Officer at the instance of the accused would be hence wholly naked nor would it be construable to be an admissible besides a relevant piece of incriminatory evidence vis-a-vis the accused, significantly when the mandate of law warrants effectuation of the relevant recovery at the instance of the accused not under a composite recovery memo rather warrants recording prior thereto an admissible custodial disclosure statement of the accused. In other words, the recording of a disclosure statement of the accused by the Investigating officer prior to his effectuating any recovery at the instance of the accused, is preemptory, its embodying the custodial confessional statement of the accused, omission to record whereof renders inconsequential besides inadmissible any recovery under a naked bald recovery memo. "27. In other words, the recording of a disclosure statement of the accused by the Investigating officer prior to his effectuating any recovery at the instance of the accused, is preemptory, its embodying the custodial confessional statement of the accused, omission to record whereof renders inconsequential besides inadmissible any recovery under a naked bald recovery memo. "27. How much of information received from accused may be proved-provided that when any fact is deposed to as discovered 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 proven." 12. Hereat, tritely with the Investigating Officer concerned prior to his effectuating recovery of weapon of offence not recording the apt custodial admissible disclosure statement of the accused renders the indispensable cannon held within the domain of Section 27 of the Indian Evidence Act qua the accused prior to his facilitating the Investigating Officer to effectuate recovery of the purported weapon of offence, his making an admissible relevant custodial confessional statement remains wholly un-satiated hence rendering recovery, if any, at the instance of the accused, of the purported weapon of offence to hold no probative vigor nor also it can be concluded qua the prosecution thereupon proving qua "stick/Danda" with purported user whereof injuries stood sustained by the victim standing hence used thereon by the accused. 13. For the reasons which stand recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of material on record by the learned trial Court 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 whereupon its judgment warrants no interference. 14. In view of the above, I find no merit in this appeal, which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.