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Himachal Pradesh High Court · body

2017 DIGILAW 601 (HP)

State of H. P. v. Tara Chand

2017-05-26

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of Himachal Pradesh against the judgment rendered on 16.07.2007 by the learned Sessions Judge, Shimla, H.P. in Criminal Appeal No. 3-S/10 of 2006, whereby, he set aside the judgement of conviction and sentence recorded upon the accused/respondents herein, by the learned trial Court. 2. The facts relevant to decide the instant case are that complainant Gian Chand made a statement under Section 154, Cr.P.C., before the police on 4.7.2003 to the effect that on 3.7.2003, he had gone to village Dhamoon to attend the Bhagwat. He came late. When he was sleeping in a single room along with his family. His son Santosh was sleeping in the veranda, in the meanwhile at about 11.45 p.m., his brother Tara Chand and Ram Lal came. Tara Chand had pushed the door, due to which bolt was opened and then both of them trespassed into the room. Both of them started beating the complainant with fists and kick blows. Thereafter, they dragged the complainant to the court-yard and then Tara Chand gave a blow on his head with “bangi” as a result of which blood started oozing out from the head. When he raised an outcry, his mother, wife and son came and rescued him. It was reported that both the accused were asking him to vacate the house or else he would be killed. His family members were also pushed around by the accused. On the aforesaid statement, a formal FIR was registered in the police station. Thereafter police completed all the formalities relating to the investigation of the case. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused stood charged by the learned trial Court for theirs committing offences punishable under Sections 451, 325, 323, 506-II/34 of the IPC. In proof of the prosecution case, the prosecution examined 14 witnesses. On conclusion of recording of the prosecution evidence, the respective statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court wherein each of the accused claimed innocence and pleaded false implication in the case. They, examined two witnesses in defence. 5. On conclusion of recording of the prosecution evidence, the respective statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court wherein each of the accused claimed innocence and pleaded false implication in the case. They, examined two witnesses in defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/respondent herein for his committing offences punishable under Sections 451, 325, 323, 506-II/34 of the IPC. In an appeal preferred therefrom by the accused/respondent herein before the learned Sessions Judge, Shimla, H.P, the latter reversed the apposite findings of conviction and sentence recorded in the judgment pronounced by the learned trial Court also he acquitted the accused of the offences. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondent by the learned Sessions Judge, Shimla, H.P.. The learned Deputy Advocate General appearing for the State has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Sessions Judge, Shimla, standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by him 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 being replaced by findings of conviction. 7. On the other hand, the learned Senior Counsel appearing for the accused/respondents herein has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned Sessions Judge standing based on a mature and balanced appreciation by him of the evidence on record and theirs not necessitating any 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 genesis of the prosecution version is held in the apposite FIR, borne on Ex.PW10/A. The FIR qua the occurrence was registered by the police station concerned, on anvil of the statement of Gian Chand, the complainant/injured. 9. The genesis of the prosecution version is held in the apposite FIR, borne on Ex.PW10/A. The FIR qua the occurrence was registered by the police station concerned, on anvil of the statement of Gian Chand, the complainant/injured. The statement of the complainant/injured is embodied in Ex.PW1/A, wherein, he has disclosed that on 3.7.2003, at about 11.45 p.m., when he in a single room was “asleep”, alongwith his other family members, then his brothers, accused Tara Chand and Ram Lal, after striking a kick blow at the door of the room, ingressing there into it. He communicates therein that at the relevant time one of his sons, one Santosh Kumar, being asleep in the veranda occurring outside his room. He has continued to disclose therein that after the aforesaid accused ingressing into the room, theirs proceeding to belabour him with kick and fist blows also both the accused dragging him outside onto the veranda, whereat, accused Tara Chand with the user of a “bangi”, Ex. Pz, which was lying in the veranda, proceeding to strike its blows on his head, sequeling, oozing of blood therefrom, whereupon, he was constrained to raise an outcry, hence, resulting in his family members arriving at the relevant site of occurrence and on whose intercession, he was rescued from the clutches of both the accused. 10. The genesis of the prosecution version aforesaid, as occurs in Ex.PW1/A is the fulcrum, wherefrom, the veracity of the testifications of the prosecution witnesses is to be tested. In case, a close, circumspect perusal of the statements of the prosecution witnesses, makes a disclosure that they hence contradict the version qua the occurrence borne on Ex.PW1/A, thereupon, this Court would be constrained to conclude that the version borne in Ex.Pw1/A being incredible also it would foment an inference that hence, the prosecution failing to establish to the hilt the charge in respect whereto the accused stood tried. 11. In making a discernment, whether the prosecution witnesses contradict the version qua the occurrence embodied in Ex.PW1/A, an allusion to their respective depositions, significantly of the complainant, who deposed as PW-1, his son, who deposed as PW-2, his other son, who deposed as PW-5, lastly his wife, who deposed as PW-9, is imperative. 11. In making a discernment, whether the prosecution witnesses contradict the version qua the occurrence embodied in Ex.PW1/A, an allusion to their respective depositions, significantly of the complainant, who deposed as PW-1, his son, who deposed as PW-2, his other son, who deposed as PW-5, lastly his wife, who deposed as PW-9, is imperative. Even though, the complainant in his testification, testifies in consonance with the version qua the occurrence enunciated in Ex.PW1/A, nonetheless, it would be unbefitting to therefrom conclude that the prosecution hence succeeding in proving to the hilt the charge in respect whereof the accused stood tried. Nowat, a perusal of the testification of PW-2, assumes significance, as he stands recited in Ex.PW1/A to be asleep in the “veranda”, occurring outside the room, room whereof stood ingressed by both the accused, whereafter, “thereat” co-accused Tara Chand with “bangi”, Ex.Pz recovered under recovery memo Ex.PW7/A, struck its blow on the head of PW-1. The singular fact which erases the veracity of his testification, is comprised in the fact that despite his being asleep at the relevant site of occurrence, there occurs no enunciation in Ex.PW1/A, qua his intervening in the scuffle which ensued inter se both the accused and his father, the complainant. Also when despite his being available at the site of occurrence, it is enigmatic that he omitted to preempt the accused concerned from striking blows of “bangi” Ex.Pz, on the head of the victim/complainant. Evident want of rescueatory efforts on the part of Santosh Kumar, despite his being available at the site of occurrence “does” constrain an inference that he was unavailable at the site of occurrence also it appears that the complainant while recording in Ex.PW1/A, that PW-2 was asleep in the veranda, whereat the ill-fated scuffle took place, has hence contrived his presence thereat. Conspicuously, also when the purported rescueatory efforts were made by his family members, who were asleep along with him in a single room and all of whose presence, at the site of occurrence stood aroused by shrieks and cries raised by the victim, in sequel to his being purportedly struck with blows of “bangi” on his head, by accused Tara Chand. In aftermath, the testification of PW-2 in purported corroboration to the testification of PW-1, is unworthy-while. In aftermath, the testification of PW-2 in purported corroboration to the testification of PW-1, is unworthy-while. What ultimately erodes the effect of his testification is comprised in a disclosure occurring in his cross-examination qua accused Tara Chand being unavailable at the site of occurrence. 12. PW-3, though in her examination-in-chief purveys a version qua the incident, in purported corroboration to the testification of PW-1, yet effect thereof is obliterated, by the fact of hers in her cross-examination making a disclosure that given the darkness prevailing at the relevant time, hers being incapacitated to identify the assailants. PW-5, the other son of the complainant, in his testification occurring in his examination-in-chief, though lends succor to the deposition of his father, who testified as PW-1. However, the fact of his purportedly eye witnessing the occurrence, is rendered vulnerable to skepticism, given his father in Ex.PW1/A not naming him to be available at the site of occurrence, rather his naming, his sons Santosh Kumar being purportedly available at the site of occurrence and also his other son Parmod being available at the site of occurrence. Omission of PW-1 to in Ex.PW1/A, hence, narrate qua PW-5 being available at the site of occurrence “when” construed in conjunction with Parmod not being examined by the prosecution, though, his name occurs in Ex.PW1/A, bolsters an inference that PW-6 is a invented witnesses to the occurrence, hence, his testification in purported corroboration to the tesification of PW-5, loses its vigour. Aggravation to the aforesaid inference, is awakened by the factum of his in his cross-examination making a communication with respect to his being unaware qua the cause of the ill-fated event. His feigning ignorance qua the cause which generated the ill-fated event, begets an inference that he obviously is an introduced or an invented witnesses to the occurrence, hence, concomitantly, his testification occurring in his examination-in-chief is also amenable to an inference that it purveys a concocted account in respect of the occurrence, in sequel thereto, it loses its creditworthiness. 13. His feigning ignorance qua the cause which generated the ill-fated event, begets an inference that he obviously is an introduced or an invented witnesses to the occurrence, hence, concomitantly, his testification occurring in his examination-in-chief is also amenable to an inference that it purveys a concocted account in respect of the occurrence, in sequel thereto, it loses its creditworthiness. 13. The testification of PW-9 is also unworthy while, given hers in her examination-in-chief disclosing that on her husband being dragged by the accused from his room onto the veranda, hers following him and Santosh also following her, whereas, in Ex.PW1/A, the complainant contrarily echoes qua the arrival of PW-9 at the site of occurrence being aroused by his raising shrieks and cries, in sequel to his being struck with blows of 'bangi' on his head by accused Tara Chand. Also when in Ex.PW1/A, the complainant contrarily vis-a-vis PW-9 echoes that Santosh Kumar was asleep in the veranda, whereat the relevant occurrence took place, consequently, with PW-9 deposing that Santosh followed her from the room onto the relevant site of occurrence, her testification hence contradicts the version of PW-1 with respect to the presence of Santosh in the veranda, outside the room, besides contradicts the apposite recitals in respect thereto borne in Ex.PW1/A, whereupon, her testification is rendered incredible also enhances vigour to the aforesaid inference that Santosh is an invented witness. 14. PW-8, subjected the victim to medical examination, in sequel whereto he prepared MLC Ex.PW8/A, wherein, he has made a disclosure that at the time contemporaneous to his subjecting the victim to medical examination, his noticing oozing of fresh blood from the injuries occurring on the body of the complainant/victim. However, the Investigating Officer “despite” copious oozing of blood from the head injury sustained by the victim/complainant, on the latter being struck thereat with a blow of “bangi”, Ex. Pz, by accused Tara Chand, neither collected, the clothes of the victim/complainant, which hence were imperatively enjoined to hold smears of blood or stains of blood nor “bangi” Ex. Pz holds any stain of blood. Be that as it may, the effect of the aforesaid non collection of the clothes of the complainant, by the Investigating Officer, as also non occurrence of blood smears on 'bangi' Ex. Pz holds any stain of blood. Be that as it may, the effect of the aforesaid non collection of the clothes of the complainant, by the Investigating Officer, as also non occurrence of blood smears on 'bangi' Ex. Pz, is that it sequels a derivative that the ill-fated occurrence took place in a manner other than as enunciated in Ex.PW1/A, whereupon, an aura of doubt shrouds the authenticity of the recitals borne on Ex.PW1/A, with a sequeling effect of the prosecution not proving the charge against the accused. 15. Be that as it may, apart from the fact that 'bangi' Ex. Pz, not holding any stain of blood though with purported user whereof, a blow upon the head of the complainant was struck by accused Tara Chand struck, hence, its purported user by accused Tara Chand standing negated. The further effect that 'bangi' Ex. Pz stood handed over by PW-9 to the Investigating Officer concerned, in sequel, whereto memo Ex.PW7/A stood prepared also does not render it to be construable to be the relevant weapon of offence, significantly when, for reasons ascribed hereinafter, the prosecution has not efficaciously proven its recovery at the instance of the accused. 16. The recitals borne on Ex.PW7/A, make a disclosure qua the wife of the complainant, PW-9, handing over 'bangi' Ex. Pz to the Investigating Officer concerned. However, therein, there is no reflection qua the date whereon she handed over 'bangi' to the Investigating Officer, rather at the end of Ex.PW7/A, the Investigating Officer makes an endorsement qua the aforesaid mode of handing over of 'bangi occurring on 4.7.2003. Since, Ex.PW7/A was throughout, in the custody of the Investigating Officer concerned, hence, he at the end of Ex.PW7/A, appears to have recorded an endorsement qua his preparing Ex.PW7/A, on 4.7.2003, whereas, for obtaining a firm conclusion therefrom, qua its being prepared on 4.7.2003 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 also make an endorsement qua its standing prepared on 4.7.2003. However, the aforesaid relevant endorsements do not visibly occur in Ex.PW7/A. Hence, it is to be concluded that the Investigating Officer concerned, through, sheer contrivance introducing 'bangi' as the purported weapon of offence, with user whereof, co-accused Tara Chand inflicted injuries on the head of the victim/complainant. However, the aforesaid relevant endorsements do not visibly occur in Ex.PW7/A. Hence, it is to be concluded that the Investigating Officer concerned, through, sheer contrivance introducing 'bangi' as the purported weapon of offence, with user whereof, co-accused Tara Chand inflicted injuries on the head of the victim/complainant. More so when, with respect to the date of preparation of Ex.PW7/A neither PW-7 nor PW-9 makes any unequivocal apposite communication. Even otherwise, 'bangi', Ex.Pz, is the incriminating piece of evidence against the accused. Normally recovery of any weapon of offence, has to occur within the domain of Section 27 of the Indian Evidence Act, 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 Ex.PW7/A by recording a recital therein qua PW-9 handing over 'bangi' to him. The aforesaid incriminating piece 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 it left it at the site of occurrence, whereafter, they fled therefrom. Hence, he contends that PW-9 proceeded to handover the 'bangi' 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 its 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 its 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 the purported weapon of offence, appears to be made by the Investigating Officer concerned, by his, actively circumventing the mandate of Section 27 of the Indian Evidence Act, whereas, with the aforesaid weapon of offence comprising the incriminating piece of evidence also when with respect to 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 efficacy of the relevant recovery, hence, revere mandate thereof rather than his proceeding to engineer an ingenious method, to proceed to make recovery of weapon of offence in the manner he did under memo Ex.PW7/A. The provisions of Section 27 of the Indian Evidence Act read as under:- “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.” Consequently, with this Court concluding that recovery of 'bangi' not holding any vigour, it is apt to conclude that the prosecution has failed to establish that the 'bangi' was used by the accused concerned, to inflict blows on the victim/complainant. 17. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge concerned 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 concerned does not suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of germane evidence on record. 18. Consequently, the instant appeal is dismissed. In sequel, the judgment impugned hereat is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.