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2017 DIGILAW 961 (HP)

Kanthi Ram v. State Of H. P.

2017-08-24

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The instant Appeal stands directed against the judgment of the learned Additional Sessions Judge, Sirmour at Nahan rendered on 15.06.2007 in Sessions Trial 22-N/7 of 1997, whereby, he returned findings of conviction upon the Accused/convicts, for their committing offences punishable under Sections 147, 323, 353, 332, 325 read with Section 149 of the IPC. The learned trial Court also proceeded to sentence them under Section 147 IPC to undergo simple imprisonment for a term of one year each and to pay a fine of Rs. 500/- and in default to further undergo simple imprisonment for a term of one month and similar punishment under Section 323 read with Section 149 of the IPC was imposed them. The learned trial Court further proceeded to under Section 325 read with Section 149 of the IPC sentenced them to undergo simple imprisonment for a term of two years each and to pay a fine of Rs. 2,000/- and in default to further undergo simple imprisonment for a term of three months. They have also been sentenced under Section 332 read with Section 149 of the IPC to undergo simple imprisonment for a term of one year each and to pay a fine of Rs. 1000/- each and in default to further undergo simple imprisonment for a term of two months. The learned trial Court further proceeded to under the provisions of Section 353 read with Section 149 IPC, sentence the convicts to simple imprisonment for a period of one year and to a fine of Rs. 1000/- and in default of payment of fine, to undergo imprisonment for a further period of one month 2. The facts relevant to decide the instant case are that an FIR No. 21/96 under Section 436 IPC had been caused to be registered at Police Station, Renukaji on 6.2.1996, in which Accused Kanthi Ram was the complainant. During the investigation of that case, the complainant had gone to village Chulti-ka-Thach on 29.6.1996, along with LHC Hari Saran, Surjan Singh, Kannungo and Sher Singh Patwari in order to get the land demarcated in the said village. Local persons namely, Bansi Ram and Deep Ram were also joined. During the investigation of that case, the complainant had gone to village Chulti-ka-Thach on 29.6.1996, along with LHC Hari Saran, Surjan Singh, Kannungo and Sher Singh Patwari in order to get the land demarcated in the said village. Local persons namely, Bansi Ram and Deep Ram were also joined. Allegedly at about 11 a.m. Kanthi Ram who was also present on the spot handed over two letters, one to the complainant and another to Surjan Singh, Kanungo, which were signed by Pradhan and BDC members stating therein that the demarcation of the land may not be carried out. Allegedly, while they were going through the aforesaid letters, in the meantime the other brothers of Kanthi Ram namely Accused Tula Ram, Accused Babu Ram and their father Roop Singh (since deceased) emerged from behind the bushes and started pelting stones on them. They were also accompanied by two wowen namely Accused Rehno and Accused Gulabo Devi. They also started pelting stones upon them, vis-a-vis Tula Ram, PW-1 LHC Hari Saran, PW-2, Sher Singh Patwari PW-3, complainant and Deep Ram. Kanthi Ram snatched the revenue papers from Sher Singh Patwari. The Accused persons also pushed on Tula Ram to the ground and gave him beatings. Kanthi Ram even caught hold of Tula Ram by his neck. Then Kanthi Ram had also pelted stones. As a result of pelting stones and beatings Tula Ram had sustained multiple injuries on his body on account of which he fell unconscious. Thereafter, all the Accused ran away apprehending that Tula Ram was dead. As per prosecution story, the Accused persons had deterred the police and revenue officials from carrying out the demarcation. Ruqua Ext. PB was drawn up by the complainant and got it sent to the Police Station for registration of the case. During investigation, all the injured were medically examined from Doctor Birbal Vij, BMO Pachhad. Tula Ram was referred to District Hospital for further treatment. Clothes of injured were taken into possession. Allegedly Kanthi Ram had made a disclosure statement and in consequence thereof, got recovered revenue record. After the completion of investigation, the Challan was put in the Court of law against the Accused persons including Roop Singh who is said to have died during the pendency of Challan. Clothes of injured were taken into possession. Allegedly Kanthi Ram had made a disclosure statement and in consequence thereof, got recovered revenue record. After the completion of investigation, the Challan was put in the Court of law against the Accused persons including Roop Singh who is said to have died during the pendency of Challan. Vide judgment of conviction dated 12.10.1998, all the Accused persons were convicted under Sections 147, 323, 325 and 353 read with Section 149 IPC and acquitted under Section 307, 332 and 382 IPC. Against the judgment dated 12.10.1998, an Appeal was preferred before this Court and vide judgment dated 16.7.2002 the case was sent back for retrial by framing fresh appropriate charges against the Accused. Consequent upon the aforesaid order of the Hon''ble High Court, the Accused persons were put fresh charges under Sections 147 and 149, 307, 353,332 and 382 read with Section 149 IPC on 23.8.2002. 3. On conclusion of the investigations, 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. In proof of prosecution case, the prosecution examined 12 witnesses. On conclusion of recording of the prosecution evidence, the statement of the Accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein the Accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction against the Accused/appellant herein in respect of charges framed under Sections 147, 323, 353, 332, 325 read with Section 149 IPC. However, the learned trial Court acquitted the Accused persons in respect of charges framed under Sections 307, and 382 read with Section 149 IPC. 6. The Accused/appellant stood aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing for the Accused/appellants has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation by it of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the 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. 7. 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. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended of the findings of conviction recorded by the Court of learned Additional Sessions Judge, Sirmaur at Nahan standing based on a mature and balanced appreciation, by it, of the 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. In respect of proof of charges framed against the Accused persons under the provisions of Section 323 and 325 IPC read with Section 149 of the IPC, the prosecution depended upon the testimonies of PWs 1,2,4 and 6. The aforesaid witnesses in their respective deposition(s) comprised in their respective examination(s)-in-chief deposed with absolute interse corroboration in respect of the Accused persons while forming an unlawful assembly, theirs pelting stones upon their respective person(s), in pursuance whereto Tula Ram, Deep Ram, Rattan Kumar and Bansi Ram sustained injuries on their respective person, injuries whereof are borne in MLCs respectively comprised in Ext. PW9/A, Ext. PW9/B, Ext. PW9/C and in Ext. PW9/D. Consequently, this Court is enjoined to impute sanctity to their respective deposition(s). All the aforesaid witnesses were subjected to an incisive cross-examination by the learned defence counsel, yet therein no elicitations emerged in portrayal of their respective deposition(s) comprised in their respective examination(s)-in-chief standing hence contradicted nor therein any elicitations emanate in portrayal of theirs mutually contradicting the genesis of the prosecution version comprised in their respective examination(s)-in-chief, moreso, when therein each aforesaid, omit to, either improve or embellish upon their respectively recorded previous statements in writing, rather enjoins the Court to impute credence thereto. The deposition(s) of the aforesaid prosecution witnesses also acquire sustenance from the Doctor concerned who prepared the MLCs concerned, thereupon the genesis of the prosecution version in respect of the charges framed against the Accused stands efficaciously proven. The deposition(s) of the aforesaid prosecution witnesses also acquire sustenance from the Doctor concerned who prepared the MLCs concerned, thereupon the genesis of the prosecution version in respect of the charges framed against the Accused stands efficaciously proven. However, though for all the reasons aforesaid, the deposition(s) of the victims/injured acquire vigour, yet the tenacity of their testification(s), is, eroded by one purported injured eye witness to the occurrence, while testifying as PW-5, proceeding to in his cross-examination conducted by the learned defence counsel, acquiesce, to the suggestion(s) thereat put to him, suggestion(s) whereof hold echoings therein qua none of the Accused pelting stones at any of the injured victims including PW-5. The aforesaid witness on standing declared hostile, on an apposite request made to the learned trial Court by the Public Prosecutor concerned, stood subjected to crossexamination, by the Public Prosecutor concerned, yet therein no elicitations emerged in display of his supporting the genesis of the incident comprised in his examination-in-chief nor therein elicitations emerged in respect of his deposition comprised in his crossexamination conducted by the learned defence counsel, wherein he exculpates the guilt of the Accused persons in respect of theirs pelting stones at the person of victims including him, standing hence contradicted, thereupon with PW-5 contradicting the versions qua the occurrence testified by PWs 1, 2 and 4 in respect of charges framed against the Accused persons under Sections 323 and 325 IPC read with Section 149 IPC, hence bolsters an inference qua thereupon the depositions of the aforesaid injured interested witnesses losing their respective creditworthiness. 10. Immense momentum to the aforesaid inference is garnered by the factum, of, though respective recovery memo(s) standing prepared in respect of blood stained clothes respectively recovered thereunder, yet the blood stained clothes recovered under the relevant recovery memo(s), remained, unproduced by the Public Prosecutor concerned before the learned trial Court, nor obviously they stood shown either to PW-1 or to PW-5, thereupon with both the aforesaid witnesses standing precluded to co-relate their respectively purportedly recovered blood stained clothes, recovery(s) whereof stood effected under memo(s) Ext. PA and Ext. PW6/A, with, the ones produced in Court. PA and Ext. PW6/A, with, the ones produced in Court. As a corollary, absence of adduction in Court, of the blood stained clothes of PW-1 and of PW-5, renders all recovery memo(s) prepared in respect thereto, to beget the stain of fictitiousness besides invention, thereupon, the impugned conclusions recorded in respect of charges framed vis-a-vis Accused under Section(s) 323 and 325 read with Section 149 of the IPC, lose vigour. The aforesaid omission of the Public Prosecutor concerned to, at the time of examination of PW-1, adduce before the learned trial Court, the blood stained clothes of PW-1 and PW-5 also precluded the learned trial Court to endorse thereon any exhibit mark, thereupon an inference is bolstered qua the genesis of the prosecution case in respect of the charges framed under Sections 323 and 325 read with Section 149 IPC being amenable to be construable, to, stand engendered by proactive contrivance employed by the Investigating Officer concerned. In addition, it appears that the Investigating Officer concerned, despite respectively under memo(s) Ext. PA and Ext. PW6/A, making effectuation of recovery(s) of blood stained clothes of PWs 1 and 5, yet his omitting to despatch the clothes of both PW 1 and PW5 to the FSL concerned, for the latter pronouncing thereon an opinion in respect of stains of blood gathered thereon belonging respectively to the blood group of PW1 and of PW5. His omission in the aforesaid regard also stems an inference that all blood stains respectively borne on clothes recovered under the aforesaid memo(s), not, belonging to either PW-1 or to PW-5, rather it has to be with firm reiteration held that recovery memo(s) prepared in respect therewith being both invented besides being contrived. On coagulating the aforesaid inference with the aforesaid effect, of, PW-5 not supporting the testfications of PWs 1, 3, 4 and 6, hence nails an inference of the prosecution failing to prove the charge under Sections 323 and 325 IPC vis-a-vis the Accused. 11. Be that as it may, the effect of the aforesaid inference, is, that the testification of the Doctor concerned in proof of the MLCs prepared in respect of the victims/injured, cannot, acquire any leverage for enhancing the prosecution case in support of the charges framed under Sections 323 and 325 read with Section 149 of the Indian Penal Code. 11. Be that as it may, the effect of the aforesaid inference, is, that the testification of the Doctor concerned in proof of the MLCs prepared in respect of the victims/injured, cannot, acquire any leverage for enhancing the prosecution case in support of the charges framed under Sections 323 and 325 read with Section 149 of the Indian Penal Code. All the aforesaid inferences garner enhanced strength from PW-5 voicing in his crossexamination in respect of 20-25 persons being available at the spot, at, the time contemporaneous to the alleged occurrence taking place thereat. The effect of the aforesaid inference is of its begeting an inference of all or one of the aforesaid persons pelting stones upon the victims/injured besides any arousal of the aforesaid inference hence shrouds with an aura of doubt any ascription of an incriminatory role visi-a-vis the Accused, in respect of charges framed under Section 323 and under Section 325 read with Section 149 of the IPC, benefit whereof is enjoined to be conferred upon the Accused. The upshot of the aforesaid discussion is that the findings of conviction recorded by learned Additional Sessions Judge, Sirmour at Nahan in respect of charges framed against the Accused under Section 323 and under Section 325 read with Section 149 of the Indian Penal Code are quashed and set aside. 12. The prosecution witnesses PWs 1, 3, 4 and 6 deposed with absolute unequivocal unanimity in respect of Accused Kanthi Ram, snatching, from the Patwari the revenue papers concerned. The testification(s) of the aforesaid prosecution witnesses in respect of the aforesaid penal misdemeanor of the Accused also stands corroborated by the Investigating Officer concerned ''prior'' to his effecting, at the instance of the Accused, recovery(s) thereof under memo Ext. PW6/A, his recording an apposite disclosure statement borne in Ext. PW5/A with articulation(s) thereon in respect of their place of keeping and hiding, by the Accused besides when PW-5, a, witness to both Ext. PA and Ext. PW6/A, his recording an apposite disclosure statement borne in Ext. PW5/A with articulation(s) thereon in respect of their place of keeping and hiding, by the Accused besides when PW-5, a, witness to both Ext. PA and Ext. PW6/A testifies in respect of veracity(s) thereof nor when, he, in his crossexamination erodes his testification occurring in his examination-in-chief, thereupon it is to be concluded, of, the prosecution succeeding in proving the charges framed against the appellant under Section 332 IPC and also charge under Section 353 IPC, especially when unless without the public officer(s) being assaulted dehors no injury being inflicted upon them by the Accused by his purportedly pelting stones upon them, ''the'' snatching (s) of the public records by the Accused from public servant(s) could not have been occurred. 13. Consequently, for the foregoing reasons, the instant Appeal is partly allowed. In aftermath, the judgment of the learned trial Court is modified to the extent that the conviction and sentence imposed upon the appellant(s) by the learned trial Court in respect of charges framed under Sections 323 and 325 read with Section 149 of the Indian Penal Code are quashed and set aside whereas the conviction and sentence imposed upon the appellant(s) by the learned trial Court in respect of charges framed against him under Sections 332 and 353 IPC read with Section 149 IPC are affirmed. Conviction and sentence imposed upon the appellant(s) herein by the learned Sessions Judge in respect of charge under Sections 332 and 353 IPC read with Section 149 IPC be forthwith carried into execution. The period of sentence undergone by them/him during investigation and trial is ordered to be set off under Section 428 of the Cr.P.C. from the sentence(s) finally imposed upon him. The records of the learned trial Court be sent back forthwith.