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2017 DIGILAW 541 (HP)

State of Himachal Pradesh v. Baldev Parkash

2017-05-17

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the judgment recorded by the learned Sessions Judge, Una, whereby he reversed the findings of conviction pronounced upon the accused by the learned Addl. Chief Judicial Magistrate, Amb. 2. The brief facts of the case are that the complainant lodged a report with the police to the effect that he is running a Parshad shop in main bazaar, Chintpurni. Accused Baldev Parkash also runs a shop adjacent to his shop. On 14.10.2002 at about 7.30 am, complainant Mehar Chand and his son Rajiv Sharma opened their shop. At about 1.30 p.m accused Baldev Parkash, his son Ganesh Dutt and his servant Vinod Kumar entered the shop of Mehar Chand armed with sticks and gave beatings to Mehar Chand and Rajiv Sharma. Rajiv Sharma suffered injuries on his head and Mehar Chand also suffered injuries on his person. According to the complainant, accused Vinod Kumar also removed Rs.3000/- from his cash box in the shop. It is also asserted that they were rescued by Subhash Chand and Rinku. The case was investigated by HC Rachhpal Singh who after completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused, prepared the challan and filed it in the Court. 3. A charge stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 323, 380, 452 and 506 read with Section 34 IPC 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 C.P.C., 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 Appellate Court returned findings of acquittal upon the accused. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Sessions Judge, standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it of the 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. 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 Sessions 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 testifications’ of the complainant/victims and also of the eye witnesses to the ill-fated occurrence, corroborates the version qua the occurrence embodied in F.I.R. Ext.PW-8/A. Their respective testifications’ hence do not suffer from any taint of their improving upon or embellishing their respective previous statements recorded in writing rather when their testifications are also bereft of any stains of any inter se contradictions occurring in their respective testifications, hence their testifications warranted imputation of credence. However, the learned Sessions Judge, had dispelled the vigour of their testifications, on the ground of the Investigating Officer concerned “not” joining as eye witnesses to the occurrence, the owners of shops located in close proximity to the site of occurrence, rather his joining PW-1 and PW-4, as purported eye witnesses to the occurrence, whose testimonies palpably acquire a taint of interestedness, arising from the fact of theirs holding acquaintance with the complainants/victim. However, the aforesaid reason as assigned by the learned Sessions Judge for pronouncing a judgment of acquittal upon the accused, may not acquire any vigour, as mere interestedness of any ocular witnesses to the occurrence, would not per se constrain a conclusion that their relevant testified ocular versions, hence warranting disimputation of credence “unless” the defence had during the course of subjecting each of them to cross-examination “unearthed” from their echoings, with respect to theirs being unavailable at the site of occurrence. However, despite the aforesaid witnesses standing subjected to the rigour of an exacting cross-examination, their respective versions qua the occurrence revealed in their respective examinations-in-chief, remained unshattered. Consequently, the defence failed to establish that they were unavailable at the site of occurrence, at the relevant time of its taking place. However, despite the aforesaid witnesses standing subjected to the rigour of an exacting cross-examination, their respective versions qua the occurrence revealed in their respective examinations-in-chief, remained unshattered. Consequently, the defence failed to establish that they were unavailable at the site of occurrence, at the relevant time of its taking place. Hence, on score aforesaid, it is difficult to accept the reasons assigned by the learned Sessions Judge that their respective versions qua the occurrence is incredible, arising from the factum of theirs holding leanings vis-à-vis the accused and that hence the Investigating Officer concerned was enjoined, to, by associating as eye witnesses thereto, the owners of shops located in proximity to the site of occurrence, who however would have lent a truthful impartisan ocular version qua the occurrence, omission whereof begetting an apt inference qua the Investigating Officer conveying in his apposite report, a coloured unbelievable version qua the occurrence. However, the genesis of the prosecution version, does beget a stain of untruthfulness, significantly when one of the co-accused Baldev Prakash is evidently a witness in a case registered under Section 376 IPC against the complainant PW-1. The aforesaid evident fact of co-accused Baldev Prakesh standing cited as a witness against the victim/complainants “does” when construed alongwith the Investigating Officer, omitting to associate as eye witnesses to the occurrence, shopkeepers holding commercial establishments in close proximity to the site of occurrence rather his associating PW-2 and PW-4 as purported eye witnesses to the occurrence, who however hold leanings via-a-vis the victims/complainant, arising from the factum of theirs holding a close acquaintance with them, hence garners an inference that a stained/coloured version qua the occurrence being embodied in the apposite F.I.R. Also a stained version qua it standing testified by the victims/complainant also by purported eye witnesses thereto who deposed as PW-2 and PW-4 in respect thereto. 10. The learned Deputy Advocate General has contended that the MLC borne on Ext.PW-9/A, exhibit whereof stands proven by PW-9 also with the latter in his testification deposing that the injuries reflected therein being causeable by user of Dandas, recovered under Memo Ext.PW-1/B, hence ought to constrain a conclusion that dehors infirmity, if any, gripping, the testifications of the victims besides of PW-2 and PW-4, yet the prosecution succeeding in establishing the charge. 11. 11. The mere factum of proof of injuries comprised in Ext.PW-9/A by the latters’ author also his testifying that their occurrence on the respective persons of the victims/complainant being sequelable by user of Danda Ext.PW-1/B, does not per se enhance any conclusion that the prosecution has succeeded in proving that dandas Ext.P-1 and P-2, were used by co-accused concerned, for delivering blows on the respective persons of the victims/complainant. Contrarily with for reasons assigned above, the effect of the inference aforestated that the testifications of PW-2 and of PW-4 acquire a pervasive taint of veracity, is construed with the prosecution also “not” for reasons assigned hereafter hence proving the factum of recovery of Ext.P-1 and Ext.P-2 the respective Dandas besides recovery of stolen cash worth Rs.3000/-, being effectuated in a legally efficacious manner, would rather boost an inference that the prosecution has contrived to falsely implicate the accused (a) The recitals embodied in Ext.PW-1/B, make a disclosure qua the complainant handing over dandas to the Investigating Officer concerned. However, therein there is no reflection qua the date whereon he handed over Dandas to the Investigating Officer rather at the end of Ext.PW-1/B the Investigating Officer makes an endorsement qua the aforesaid mode of handing over the Dandas occurring on 14.10.2002. Since Ext.PW-1/B was throughout, in the custody of the Investigating Officer concerned hence, he at the end of Ext.PW-1/B, appears to have recorded an endorsement qua his preparing Ext.PW-1/B, on 14.10.2002, whereas for obtaining a firm conclusion therefrom qua its being prepared on 14.10.2002 by the Investigating Officer concerned, an apposite recital was enjoined to be embodied therein also the signatories thereto were enjoined, to, under their respective signatures occurring therein make an endorsement qua its standing prepared on 14.10.2002. However, the aforesaid relevant endorsements do not visibly occur in Ext.PW-1/B. Hence, it is to be concluded that the Investigating Officer concerned, through sheer contrivance introducing Dandas as purported weapons of offence, with user whereof, the co-accused inflicted injuries on the person of victims/complainant. Moreso when with respect to the date of preparation of Ext.PW-1/B neither PW-1 nor PW-4 makes any unequivocal apposite communication. (b) Even otherwise, Dandas Ext.P-1 and P-2 are the incriminating pieces of evidence against the accused respondents. Normally recovery of any weapon of offence, has to occur within the domain of Section 27 of the Indian Evidence Act, provisions whereof stand extracted hereinafter: 27. (b) Even otherwise, Dandas Ext.P-1 and P-2 are the incriminating pieces of evidence against the accused respondents. Normally recovery of any weapon of offence, has to occur within the domain of Section 27 of the Indian Evidence Act, provisions whereof stand extracted hereinafter: 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 proved. 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, record a disclosure statement of the accused concerned. However, the Investigating Officer neither within the precincts of Section 27 of the Indian Evidence Act recorded a disclosure statement, of any of the accused concerned nor he proceeded to subsequent thereto effect the relevant recoveries. Contrarily he, for reasons aforestated inefficaciously/fictitiously prepared Ext.PW-1/B, by recording a recital therein qua the victims/complainants handing over Dandas to him. The aforesaid incriminating pieces of evidence against the accused, stand canvassed by the learned Deputy Advocate General to be not warranting disimputation of credence nor also it being open for this Court to discard their probative vigour, as the accused after using them left them at the site of occurrence, whereafter they fled therefrom. Hence, he contends that the victims/complainant proceeded to handover the dandas 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 effectuating their 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. He also proceeds to contend that since the Investigating Officer concerned ‘not’ within the domain of Section 27 of the Indian Evidence Act effectuating their 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, as the aforesaid manner of effectuation of recovery of purported weapons of offence, appears to be made by the Investigating Officer concerned, by his, actively circumventing the mandate of the Section 27 of the Indian Evidence Act, whereas with the aforesaid weapons of offence comprising the incriminating pieces of evidence also when with respect of recovery thereof apt provisions are encapsulated in the relevant Indian Evidence Act, hence he was enjoined to for dispelling arousal of suspicion with respect to the relevant recovery, hence revere the mandate thereof rather than his proceeding to engineer an ingenious method, to proceed to make recovery of weapons of offence in the manner he did under memo Ext.PW-1/B. Consequently, with this Court concluding that recovery of Dandas not holding any vigour, it is apt to conclude that the prosecution has failed to establish that the Dandas were used by the accused concerned, to inflict blows on the victims/complainants. 12. Be that as it may, the vigour of Ext.PW-1/D whereunder recovery of cash holding worth Rs.3000/- stood purportedly effectuated, recovery whereof is disclosed to occur on co-accused Baldev Parkash handing over the sum of Rs.3000/- at police chowki, is also to be tested. In case this Court concludes that Ext.PW-1/D is fictitiously prepared, then the entire genesis of the prosecution version comprised in F.I.R. would stand shattered. Ext.PW-1/D does not echo the date of its preparation. In case this Court concludes that Ext.PW-1/D is fictitiously prepared, then the entire genesis of the prosecution version comprised in F.I.R. would stand shattered. Ext.PW-1/D does not echo the date of its preparation. The accused came to be arrested on 14.10.2002 hence when during the course of the custodial interrogation of the accused concerned, the Investigating Officer concerned could well have elicited a confession, with respect to his hiding or concealing a sum of Rs.3000/-, allegedly stolen by him from the cash box of the victim/complainant yet he appears to have not elicited the aforesaid confession from the accused, rather he appears to have engineered the preparation of Ext.PW-1/D. Consequently, it is difficult to accept the communications occurring therein, especially with co-accused concerned being arrested on the date of occurrence, yet his proceeding to walk upto the Chowki and handing over Rs.3000/- to the Investigating Officer. In aftermath, it appears that with critical inveracity gripping the preparation of Ext.PW-1/D, no reliance can be placed thereupon. 13. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge, has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned Sessions Judge 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. 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.