Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 469 (HP)

State of Himachal Pradesh v. Sanjeev Kumar

2017-05-03

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of acquittal recorded by the learned Special Judge, Bilaspur, H.P. where by he pronounced an order of acquittal upon the accused qua the offences allegedly committed by them. 2. The brief facts of the case are that the complainant is a scheduled caste and resident of village Morsinghi. As far as accused Sanjiv Kumar and Amit Kumar are concerned they are also the residents of the said village and that by caste they are Rajput. Allegedly, accused Amit Kumar runs an electronic shop in the said village and asked the complainant 2/3 times to purchase articles from his shop. On 26.09.2004 at about 7 p.m, when the complainant was coming to his house from Kasohal, both the accused along with another person to whom the complainant could not recognize attacked him from the backside. They used filthy language against him. It is further alleged that accused persons threatened the complainant that they would not allow the Chamaar to move freely in the village and kill him as well as his entire family. In the meantime, his wife, Smt. Premi Devi, brother Munshi Ram along with Shri Deep Ram and some other persons reached on the spot. On having noticed them they left the spot by saying that now all the Chamaars have come and further threatened to see them lateron. After the registration of the case, the complainant was got medically examined and the investigation was carried out by the then Dy.S.P. and after completing all codal formalities and on conclusion of the investigation into the offences, 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 Section 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 IPC and under Section 323, 325, 504, 506 IPC read with Section 34 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 any defence evidence. 5. 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 any defence evidence. 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 initial version qua the occurrence is embodied in Ext.PW-4/A. In the aforesaid exhibit the accused are disclosed to by fist and leg blows hence assault the complainant, also they are alleged to make derogatory references with respect to his caste. Moreover, it is disclosed therein that in sequel to a stone flung by co-accused Sanjeev at the nose of the victim, blood oozing there from, in sequel whereof his clothes gathering stains of blood. During the assault, the complainant raised shriekes, shriekes whereof begot the arrival of Premi Devi, Munshi Ram and Deep Ram, at the spot of occurrence. The prosecution by examining PW-1 has proven Ext.PW-1/A Where in it is depicted of the victim suffering fracture of nasal bone. PW-1 has also proven his report comprised in Ext.PW- 1/B. In his cross-examination, PW-1 has testified qua the injury reflected in Ext.PW-1/A being caused within a period of less than two weeks, since his x-raying the relevant portion of the body of the victim whereat a stone stood allegedly flung by co-accused Sanjeev Kumar. PW-1 has also proven his report comprised in Ext.PW- 1/B. In his cross-examination, PW-1 has testified qua the injury reflected in Ext.PW-1/A being caused within a period of less than two weeks, since his x-raying the relevant portion of the body of the victim whereat a stone stood allegedly flung by co-accused Sanjeev Kumar. PW-2 has proven MLC borne on Ext.PW-2/A, wherein he has detailed the hereinafter inflicted injuries:- 1. Contusion left side of Nasal bridge. Tenderness present. 2. Tenderness left temporal region. 3. Tenderness back right scapular region. 4. Tenderness right HC region. which stood noticed by him to be occurring on the person of the victim, on his subjecting him to medical examination. In his cross-examination, he has proven that the injuries detailed therein being causeable by stone Ext.P-1 being flung at the body of the victim. However, he has deposed qua Ext.P-1 not holding any stains of blood. Apart from the aforesaid evidence adduced by the prosecution, in support of the version qua the occurrence embodied in Ext.PW-4/A, for its hence striving to sustain charge to which both the accused stood subjected to, the prosecution had also depended upon the testimonies of PW-4 besides had depended upon the testimonies of PW-5 and PW-6, latter PWs where of had arrived at the site of occurrence in pursuance to theirs hearing the shrieks raised by PW-4. The solitary testification of PW-4 with respect to the version held in Ext.PW-4/A would alone be sufficient to constrain this Court to pronounce an order of conviction upon the accused ‘unless’ on an incisive perusal there of, echoings occur therein in display of his improving besides embellishing upon his version comprised in Ext.PW-4/A “or unless” his testimony is contradictory vis-à-vis the testifications of PW-1 and PW-2 who respectively prove Ext.PW-1/B and Ext.PW-2/A. In discerning whether the solitary testification of PW-4 is sufficient for imputation of credence thereon it is imperative to allude to the factum that in Ext.PW-4/A, he had made a disclosure qua his being assaulted by three persons, in contradiction where of, he, in his testification borne in his examination in chief, has ascribed the relevant incriminatory role only with respect to the accused/respondent. In sequel, the aforesaid fact per se comprises a blatant improvement besides a contradiction vis-à-vis his previous statement recorded in writing, corollary whereof, is qua his version qua the occurrence is rendered incredible. In sequel, the aforesaid fact per se comprises a blatant improvement besides a contradiction vis-à-vis his previous statement recorded in writing, corollary whereof, is qua his version qua the occurrence is rendered incredible. Both PW-5 and 6 are relatives of the victim yet the mere fact of theirs being related to the victim would not dispel the vigour of their respective testifications ‘unless’ their respective testifications reveal that they hence contradict the testifications of PW-4 or when a display occurs in their respective testifications, qua theirs visiting the site of occurrence subsequent to its taking place thereat, thereupon with theirs obviously not being ocular witnesses to the occurrence, hence the vigour of their respective testifications would stand eroded. In determining the prime factum whether they are ocular witnesses to the occurrence, an allusion to the testification borne in the cross-examination of PW-4, is, imperative, wherein he vividly deposes qua both the accused fleeing from the site of occurrence, on theirs sighting the aforesaid purported ocular witnesses. The aforesaid echoings occurring in the cross-examination of PW-4 also erodes the vigour of the subsequently deposed fact by him that on PW-5 intervening in the assault perpetrated on his person by the accused thereafter theirs fleeing from the site of occurrence significantly when he immediately prior thereto deposes qua both the accused fleeing from the site of occurrence, on theirs sighting PW-5 and PW-6 the purported ocular witnesses. Consequently, the contradictory stands adopted by PW-4 with respect to presence at the site of occurrence of PW-5 and of PW-6 at a time contemporaneous to his standing assaulted by both the accused, does constrain an inference that PW-5 and PW-6 recorded their presence at the site of occurrence subsequent to its taking place thereat, whereupon their testifications displaying that they had eye witnessed the accused assaulting the victim hence not acquiring any virtue of credibility. Sequel of the aforesaid incisive perusal of the testifications of PW-4, PW-5 and PW-6 is that the victim rearing a false case against the accused. The reason for the victim rearing a false case against the accused, stems from the accused proving the factum of the victim rearing animosity against them arising from the factum of his facing charge under Section 354 IPC for his outraging the modesty of the sister of one of co-accused. 10. The reason for the victim rearing a false case against the accused, stems from the accused proving the factum of the victim rearing animosity against them arising from the factum of his facing charge under Section 354 IPC for his outraging the modesty of the sister of one of co-accused. 10. The site plan qua the occurrence is comprised in Ext.PW-9/A. A perusal of the aforesaid exhibit proven by the Investigating officer, who stepped into the witness box as PW- 9, reveals that the shops of Surender Kumar, Sandeep Kumar and Dina Nath are located at a short distance from the site of occurrence. The aforesaid fact when is appraised in conjunction with PW-9 testifying in his cross-examination, of commercial establishments being open at the relevant time, holds the effect of the Investigating Officer hence standing enjoined cite them as prosecution witnesses, especially when he recorded their previous statements under Section 161 Cr.P.C. However, despite the Investigating Officer recording the statements of the aforesaid persons who evidently held commercial establishments in close proximity to the site occurrence, hence when he would have facilitated theirs rendering a candid impartisan version qua the occurrence, theirs standing not cited as prosecution witnesses, consequently renders open an inference that the Investigating Officer in connivance with the victim contriving a false case upon the accused/respondents. 11. Be that as it may, PW-1 who prepared Ext.PW-1/B had examined the victim on 6.10.2004. Consequently, the examination of victim by PW-1 occurred with almost 10 days elapsing since the ill-fated occurrence taking place at the relevant site. 11. Be that as it may, PW-1 who prepared Ext.PW-1/B had examined the victim on 6.10.2004. Consequently, the examination of victim by PW-1 occurred with almost 10 days elapsing since the ill-fated occurrence taking place at the relevant site. He, though in Ext.PW-1/B makes a disclosure qua his noticing, fracture of nasal bone of the victim yet when the aforesaid pronouncement made by PW-1 in Ext.PW-1/B, is construed in conjunction with PW-2 who in quick spontaneity to the occurrence examined the victim also who in his cross-examination has deposed that the injuries borne on Ext.PW- 2/A being causeable thereon by flinging of ‘stone’, does beget an inevitable inference, that initially the prosecution was rearing the factum of stone Ext.P-1 entailing upon the victim, the injuries borne on Ext.PW-2/A amongst injuries borne therein the fracture of nasal bone of the victim remains unreflected therein rather, the fact of the victim suffering fracture of nasal bone when is displayed in Ext.PW-1/B, fracture whereof purportedly occurred on a stone being flung thereat by one of the co-accused, it is hence construable to be entirely a contrivance of the Investigating Officer, in collusion with the victim. Even though the victim, in Ext.PW- 4/A, has disclosed that a stone had been flung on his nose by co-accused Sanjeev Kumar and his nasal bone hence suffered a fracture, nonetheless the failure of the Investigating Officer to ensure the prompt examination of the victim by PW-1 does also extinguish the effect of the aforesaid recital borne in Ext.PW-4/A. 12. In aftermath, the aforesaid falsity qua the aforesaid fact, with respect to the aforesaid recital borne in Ext.PW-4/A, does also negate the veracity of Ext.PW-4/A also negates the testifications of PW-5 and PW-6. 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 there from 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. 13. 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 besent back forth with.