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Himachal Pradesh High Court · body

2017 DIGILAW 558 (HP)

Dev Raj alias Raj v. State of Himachal Pradesh

2017-05-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of conviction pronounced upon the appellants herein besides is directed against the sentences pronounced upon them for theirs committing offences punishable under Sections 326, 447 and 307 of the IPC. 2. The brief facts of the case are that Smt. Jamna Devi and her father had been in possession of the land in dispute for more than 20 years. They had been cutting grass from the land. On 7.11.1997 PW-1 Jamna Devi alongwith her Jethani Veena Devi had been cutting the grass for the last 1-2 days, the accused persons tress-passed into their Ghasni and asked them not to cut grass. On her refusal, they started beating her and PW-1 Jamna Devi cried for help. Her husband Shri Roop Lal PW-4 and his brother Shri Manohar Lal, PW-5 reached the spot from their houses and the accused persons started giving beatings to them also. Accused Ram Lal alias Ramo took Gupti from Dev Raj, accused and inflicted multiple injuries with Gupti on the head and right side of the neck of her husband . Accused Ram Lal inflicted multiple injuries on the person of Shri Manohar Lal. Veena Devi cried for help and PW-3 Shri Jagdish and PW-11 Shri Roshan Lal rushed to the spot. PW-1 Jamna Devi made statement to the police Ext.PW-1/A which was recorded by PW-13 Nanak Ram, Head Constable, on which F.I.R. was recorded. 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 charge stood put to the convicts/appellants herein, by the learned trial Court, for theirs committing offences punishable under Sections 326, 447 and 307 IPC to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 17 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. However, they chose to lead evidence in defence. 5. The accused persons stand aggrieved by the findings of conviction recorded upon them by the learned trial Court, for theirs committing offences punishable under Sections 326, 447 and 307 IPC. However, they chose to lead evidence in defence. 5. The accused persons stand aggrieved by the findings of conviction recorded upon them by the learned trial Court, for theirs committing offences punishable under Sections 326, 447 and 307 IPC. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing se-quelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 6. On the other hand, the learned Deputy Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. 7. 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. 8. PW-1 who lodged F.I.R. borne on Ext. PW-1/A, has testified in corroboration with respect to the recitals borne therein. Her testification occurring in her examination in chief remains un-eroded of its veracity despite hers facing the ordeal of an exacting cross-examination. The prosecution for corroborating the version qua the incident, testified by PW-1, had led into the witness box PW-2, PW-3, PW-4 and PW-5 all purported ocular witnesses to the occurrence. In case the testifications of all the aforesaid purported ocular witnesses to the occurrence are “not” in bereft of any stain of any intra se contradictions besides when they contradict the testification of PW-1 or in case their respective testifications are in gross detraction of the version qua the occurrence embodied in F.I.R. Ext.PW-1/A, thereupon this Court would be constrained to disimpute credence to the version qua the occurrence testified by PW-1 also it would be constrained to construe that the testifications of ocular witnesses to the occurrence are ridden with a stain of theirs improving upon besides embellishing upon the version borne on Ext.PW-1/A. 9. PW-2, as apparent on a reading of his testification, occurring in his examination in chief, had arrived at the site of occurrence subsequent to its taking place thereat, hence he cannot be construed to be communicating an ocular version with respect to the incident. Consequently when he did not eye witness, the fact of accused Dev Raj “with” user of knife/gupti recovered under memo Ext.PW-1/D hence stabbing the victims, resultantly he is defacilitated to efficaciously depose with respect to the user of Gupti on the person of victim Ram Lal, by accused Dev Raj. In sequel, his testification does not support the charge against accused Dev Raj. Moreover, PW-2 in his testification has deposed that the accused persons pelted stones on the complainant besides he deposed that hence with user thereof also with user of sticks, injuries standing inflicted on the person of the complainant/victims. However, the aforesaid testification occurring in the examination in chief of PW-2, is in stark contradiction also is in gross embellishment upon the version qua the occurrence initially recorded in Ext.PW-1/A, wherein there is no enunciation qua the accused pelting stones at the complainant nor any communication occurs therein that the accused with sticks wielded by him, hence inflicted injuries on the person of the victims/complainant. His testimony hence qua the occurrence when is amenable to a construction of it standing stained with a vice of gross contradiction vis-a-vis the initial version qua the occurrence borne on Ext.PW-1/A. In sequel, it holds no creditworthiness. Also concomitantly recovery of two sticks under memos Ext.PW-1/B loose their efficacy. The testimony of PW-3 another purported ocular witness qua the occurrence also does not hold any aura of credibility, significantly when he during the course of his examination in chief, did not support the version qua the occurrence borne on Ext.PW-1/A. However, even though he was permitted to be cross-examined by the PP concerned, on his being declared hostile, yet during the course of his cross-examination, the learned PP has not been able to make any elicitation from him, whereupon this Court would be constrained, to dispel the effect of, his in his examination in chief reneging from his previous statement recorded in writing, rendering hence the effect of his not supporting the prosecution case to remain intact. 10. 10. PW-4 in his examination in chief, in blatant contradiction with the apposite recitals occurring in the apposite F.I.R. borne in Ext.PW-1/F, has disclosed that the accused persons had torn the clothes of the women/victims. The clothes of the women/victims Jamna and Veena, were respectively taken into possession under memo Ext.PW-1/C, memo whereof is proven by PW-1. However, neither the aforesaid testification occurring in the examination-in-chief of PW-4 nor recovery of clothes respectively of Jamna and Veena under memo Ext.PW-1/C, holds any vigour for this Court being constrained to pronounce an order of conviction upon the accused conspicuously when as aforesaid he has embellished besides improved upon the initial version qua the occurrence borne on Ext.PW-1/A, wherein the aforesaid fact remains unrecorded. Consequently, also it appears that PW-4 was unavailable at the site of occurrence when it took place thereat, thereupon his testification wherein he purveys a purported ocular account of the occurrence, is bereft of any aura of credibility. Aggravation to the aforesaid inference, is aroused by his in his cross-examination, making a disclosure qua Jamna and Veena alone holding a capacity, to depose with respect to the persons who had caused injuries to them, wherefrom it is to be concluded that the entire communications occurring in his examination in chief, wherein he ocularly ascribes an incriminatory role to the accused, suffering from a vice of incredibility. Likewise, also the testification of PW-5 when he alike PW-4 deposes qua the accused persons begetting tearings of the clothes of the women/victims, hence suffers from an alike infirmity hence likewise is stained with an alike infirmity of incredibility. 11. The testification qua the occurrence occurring in the examination in chief of PW-11 also an eye witness to the occurrence, is in its entirety effaced, by his in his cross-examination admitting a suggestion put to him by the learned defence counsel, that in his presence none caused injury to any member of the complainant party. 11. The testification qua the occurrence occurring in the examination in chief of PW-11 also an eye witness to the occurrence, is in its entirety effaced, by his in his cross-examination admitting a suggestion put to him by the learned defence counsel, that in his presence none caused injury to any member of the complainant party. Even though this Court has dispelled the vigour of the testifications of the purported eye witnesses to the occurrence, nonetheless the sole testification of the complainant qua the occurrence, cannot be robbed of its strength, yet when the Investigating Officer concerned, did not construe it befitting to lead her alone into the witness box, for hers hence corroborating the version qua the occurrence embodied in Ext.PW-1/A, rather his proceeding to associate for reasons aforestated invented witnesses qua the ill-fated occurrence, necessarily hence coaxes this Court to conclude that he had, by introducing invented witnesses to the occurrence, hence made a concert to, by obviously resorting to a stratagem, ensure success of the prosecution case also it begets an inference that he had even in Ext.PW-1/A proceeded to record a slanted version qua the occurrence. 12. Even though recovery memo Ext.PW-1/B is proven to beget effectuation of recovery thereunder of the items divulged therein. However, the recovery thereunder of clothes respectively of Jamna and Veena under Ext.PW-1/C, cannot leverage any conclusion that perse thereupon the genesis of the prosecution version hence being firmly proven. Significantly when for reasons aforestated, with the complainant not making in Ext.PW-1/A any communication therein qua during the course of the ill fated occurrence, the clothes of either Veena or Jamna, standing torn by any of the accused concerned. 13. The victims/injured under respective MLCs occurring on Ext.PW-16/A to Ext.PW-16/D, proven by PW-16 doctor D.R. Sehgal, pronounce therein that during the course of the ill-fated occurrence, the complainant/victims sustaining injuries. However, merely on anvil of the testification of PW-16, the prosecution cannot contend that it has succeeded in proving the charge against the accused, given this Court hereinabove concluding that the testifications of the purported ocular witnesses, to the occurrence being bereft of any aura of credibility. Also the testification of the complainant who permitted the Investigating Officer to introduce ocular witnesses to the occurrence, who, however are invented witnesses thereto hence is rendered to be ingrained with a vice of falsity. 14. Also the testification of the complainant who permitted the Investigating Officer to introduce ocular witnesses to the occurrence, who, however are invented witnesses thereto hence is rendered to be ingrained with a vice of falsity. 14. Be that as it may, the prosecution was enjoined, with an obligation, to relate the user of Gupti by accused Dev Raj by its proving that its recovery at the instance of accused Dev Raj, stood efficaciously effectuated by the Investigating Officer, by the latter hence revering the mandate of Section 27 of the Indian Evidence Act. The Investigating Officer concerned, stood enjoined with a dire legal necessity “to prior to” effectuating recovery of the relevant weapon of offence, his during the course of holding the accused to custodial interrogation hence 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 the 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. 15. 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. 15. PW-8 though proves Ext.PW-8/C, a purported demarcation report with respect to the site of occurrence, with an articulation therein of the relevant site being not owned by the accused, yet thereupon the charge of criminal trespass is not sustained, as in his cross- examination he acquiesces that he did not associate the accused at the time of his holding demarcation of the relevant site, thereupon Ext.PW-8/C is of no consequence. 16. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not 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 suffers from perversity and absurdity of mis-appreciation and non appreciation of evidence on record. In view of above discussion, the appeal is allowed and the impugned judgment rendered by the learned Sessions Judge, Bilaspur is set aside qua convicts Dev Raj and Ram Lal. The appellants/accused are acquitted of the offences charged. The fine amount, if any, deposited by the accused are ordered to be refunded to them. Personal and surety bonds are cancelled and discharged.