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Himachal Pradesh High Court · body

2017 DIGILAW 213 (HP)

Ram Swaroop v. Khyali Ram

2017-03-20

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant petition stands directed against the impugned judgment of acquittal recorded by the learned Judicial Magistrate 1st Class, Court No. 3, Shimla H.P. whereby he pronounced an order of acquittal qua the accused qua the offences allegedly committed by them. 2. The brief facts of the case are that on 16.12.2005 complainant Ram Swaroop Chauhan at about 7.15 a.m. was coming to his house from cowshed then the accused persons came to the spot and they restrained the complainant to proceed further and also threatened him to do away with his life. It is alleged that accused Satish, who was armed with a Darat assaulted the complainant. On this complainant received injuries on his left hand finger. It is alleged that accused Khayali Ram assaulted the complainant with a stone. On this he received injuries on his back and other accused assaulted the complainant with fist blows and kicks. The complainant raised alarm. On this his wife Romonita came there and rescued the complainant from the clutches of the accused. On his complaint, an F.I.R was registered at the police station and investigation commenced. During investigation the I.O. prepared the spot map and recorded the statements of the witnesses under Section 161 of Cr.P.C. 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 notice of accusation stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 147, 148, 341, 323, 201, 506 read with Section 149 IPC to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 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. They 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 counsel for the complainant 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. 6. The learned counsel for the complainant 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 respondents 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. With purported flinging of stone Ext.P-2 recovered under memo Ext.PW-1/A, by co-accused Khayali Ram at the victim injured, the latter sustained injuries on his person. Also with co-accused Satish purportedly inflicting injuries on the person of the victim with user thereon by him of ‘Drat’, the latter sustained injuries on his person, injuries whereof stand unfolded in the apposite MLC prepared with respect to him by PW-5. PW-5 has proven Ext.PW-5/A. The injuries noticed by him to be occurring on the person of the victim/injured, on his subjecting him to medical examination stand extracted hereinafter:- 1. There was CLW size 3x2 cm. distal bnalyus at left middle fingure on the midial size of left hand and edge were irregular with fresh bleeding present. 2. There were abrasion over middle phayas on left ring fingure and mid palmer region on left hand. Total clotted blood present on the wound. 3. There were three abrasion over occipital of skull and one abrasion over forehead with clotted blood present. 4. There were two large abrasion over left scapular region left shoulder and one abrasion over left side of pumber with bleeding present” During the course of his examination in chief he has voiced therein qua the injuries noticed by him to be occurring on the person of the victim, injuries whereof stand disclosed by him in Ext.PW-5/A, being causable thereon, on the victim standing struck with a light weapon. Also in his cross-examination he discloses qua the injuries noticed by him to be occurring on the person of the victim, may unlikely being caused if a person falls from a height in the bushes. On the anvil of the aforesaid communications made by PW-5, the learned counsel for the complainant/aggrieved submits qua the learned trial Magistrate slanting its signification also thereupon his construing it to hold a signification qua the relevant injuries proven by PW-5 to be occurring on the person of the victim/injured being likely causable by fall. He hence contends qua the aforesaid reason meted by the learned trial Court for pronouncing an order of acquittal upon the accused warranting its reversal. However, the aforesaid submission cannot be accepted in isolation from other material pieces of evidence on record, contrarily the aforesaid submission to hold sway stands enjoined to be read in coagulation with the depositions of ocular witnesses to the occurrence besides stands to be enjoined to be construed in tandem with the Investigating Officer concerned not effectuating recovery of ‘Drat’ especially when its user by co-accused Satish stands unfolded in the apposite F.I.R also when user thereof stands unveiled by ocular witnesses to the relevant occurrence who deposed respectively as PW-2 and PW-8. 10. Initially, the entire bedrock of the prosecution case rested upon the deposition of the complainant who deposed as PW-2. However, his solitary testimony if acquire succors from medical evidence also with its not standing afflicted with any tinge of unnaturalness, would hence hold clout to pronounce an order of conviction against the accused. Nonetheless, the prosecution chose to corroborate his version qua the occurrence by leading into the witness box, purported ocular witnesses to the occurrence. Its stands enjoined to test whether complainant besides PW-3 and PW-8 both purported ocular witnesses to the occurrence deposing with intra se harmony whereupon alone the prosecution would succeed in proving the charge against the accused. In the aforesaid endeavour, to test the veracity of the prosecution version, an allusion to the testimony of PW-3, a purported ocular witness to the occurrence is imperative. An allusion whereto unravels qua hers reneging from her previous statement recorded in writing. In the aforesaid endeavour, to test the veracity of the prosecution version, an allusion to the testimony of PW-3, a purported ocular witness to the occurrence is imperative. An allusion whereto unravels qua hers reneging from her previous statement recorded in writing. Also communications qua the occurrence made by her during the course of hers standing subjected to cross-examination by the learned APP concerned do not make any visible bespeaking therein qua hers corroborating the version qua the occurrence purveyed either by the complainant who deposed as PW-2 or by PW-8 another ocular witness to the occurrence. Moreover, PW-8 being a relative of the injured thereupon her testimony in opposition to the testimonies of PW-2 and PW-3 besides hers refraining to corroborate their respective versions, gathers immense significance wherefrom an inference stands galvanized qua the versions espoused by PW-2 and PW-3 thereupon loosing their respective credibility. With the deposition qua the occurrence of PW-2, the complainant and of PW-8 a purported eye witness to the occurrence hence losing their respective credibility thereupon constrains this Court to conclude qua theirs hence not clinchingly proving the charge to which the respondents stands subjected to. Reiteratedly, with lack of intra se corroboration vis-à-vis the testification of each of the purported ocular witnesses to the occurrence, earns a conclusion qua the testification of PW-2, PW-3 and PW-8 losing their respective vigour, whereupon no reliance can stand imputed by this Court. 11. Be that as it may, the prosecution/complainant was also enjoined to prove the entire version held in the F.I.R. comprised in the factum of the Investigating Officer concerned besides recovering stone Ext.P-2 under memo Ext.PW-1/A, his also proceeding to recover ‘Drat’ at the instance of co-accused Satish Chauhan, user whereof in the relevant incident stands pronounced both in the F.I.R. also stands testified by PW-2 and PW-8. However, it remained un-recovered. Lack of its recovery erodes the factum of its user by co-accused Satish on the person of the victim/injured besides also benumbs the pronouncement made in Ext.PW-5/A qua the injuries noticed thereon to be occurring on the body of the victim/injured being causeable by user thereon of a sharp edged weapon. However, it remained un-recovered. Lack of its recovery erodes the factum of its user by co-accused Satish on the person of the victim/injured besides also benumbs the pronouncement made in Ext.PW-5/A qua the injuries noticed thereon to be occurring on the body of the victim/injured being causeable by user thereon of a sharp edged weapon. Moreover, PW-5 who proved Ext.PW-5/A stood not shown either the stone nor he stood shown Drat at the time when he stood subjected to examination by the learned A.P.P. Their non production before PW-5 at the apposite stage precluded emergence of relevant testification from him holdings echoings therein qua in sequel of user thereof the injuries noticed by him to be occurring on the person of the victim/injured hence standing gained thereon. Obviously, non production of ‘stone’ and of ‘Drat’ by the learned P.P. concerned before PW-5 does enhance a conclusion qua the injuries occurring on the person of the victim being not causeable thereon by either user of ‘stone’ or user of ‘Drat’. 12. Hereat the vigour of the submission of the learned counsel appearing for the aggrieved/complainant anchored upon PW-5 in his cross-examination deposing qua the injuries noticed by him to be occurring on the person of the victim may unlikely being causeable from a fall from height whereas the learned trial Court proceeded to slant its meaning by its voicing qua the injuries standing suffered by the victim by his falling from a height whereupon he canvasses qua hence the strength of the aforesaid reason getting shattered. However, with this Court concluding qua the entire genesis of the prosecution cases for reasons aforesaid losing its sinew, also when the relevant weapon of offences stood not produced before PW-5 at the stage when APP concerned held him to examination in chief, for facilitating his testifying qua their user constituting the reason for the occurrence of relevant injuries whereupon a doubt emerges qua the cause of injuries occurring on the person of the injured/complainant being hence ascribable by respective user thereon of ‘stone’ or of ‘Drat’, wherefrom it is apt to conclude qua any voicing by him in his cross-examination qua the injuries embodied in Ext.PW- 5/A may be unlikely not causeable on a person if he falls from a height, cannot constrain a conclusion qua his thereupon proving the factum of user of stone or drat by the accused Khayali and Satish upon the victim nor the words ‘may be’ unlikely qua the injuries being gainable by a person by his falling from a height can hold any signification qua his dispelling qua the injuries suffered by the victim being causeable qua his falling from a height preeminently when the word ‘unlikely“ stands preceded by word ‘may’ wherefrom it can stand gauged qua his not assuredly bespeaking qua whether the injuries suffered by the victim injured being not causeable by his falling from a height. Consequently, it was apt for the learned trial Court to also conclude qua the injuries suffered by the victim being causeable by his falling from a height. 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 petition, which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.