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2018 DIGILAW 1333 (HP)

State Of H. P. v. Bishambher Dass

2018-07-18

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The learned trial Court, convicted, the accused vis--vis charge framed under Section(s) 498-A, 323, and, under Section 506 of the Indian Penal Code, and, imposed consequential sentence(s) upon him. The convict being aggrieved therefrom, preferred an appeal before the learned Sessions Judge, Hamirpur, whereon the latter proceeded to record an order of acquittal. The State is aggrieved therefrom, hence prefers the instant appeal before this Court. 2. Brief facts of the case are that on May 16, 2004, Chuni Lal, approached the Police Station, Bhoranj and lodged the FIR, Ext. PW1/C. He reported that his daughter Sapna Devi was married to accused about 6 years back. She was kept properly by him for about 6 months whereafter he started beating her up and doubted her character without any reason. She had been tolerating all this with patience. Ultimately, she told him about it. PW-1 Chuni Lal met the parents of the accused and there was some settlement. But, then again he started apprehending in the same fashion. A Panchayat was convened and a writing of compromise was prepared, but still the accused continued, beating her up. On 16.5.2004, Sapna Devi informed her father on telephone that she had been badly beaten up by her husband. PW1 Chuni Lal, his wife and brother Prem Singh went to the house of the accused and found Sapna Devi lying on a bed badly injured. The FIR was lodged to take action against the accused. The case was investigated by ASI Karam Singh. He prepared site plan Ext. PW11/A. He took into possession two compromise deeds, Ext. PW1/A and Ext. PW1/B from PW-1 Chuni Lal, vide memo Ext. PW1/D. He also took into possession one stick of Biyul Ext. P-1 and one stick of bamboo, Ext. P-2. Recovery memo Ext. PW6/A got prepared. The prosecutrix was medically examined and her MLC is Ext. PW12/A. Statements of the witnesses were recorded and on completion of investigation, the challan was prepared against accused Bishamber Dass, for having committed offences punishable under Sections 498-A, 323 and 506 of the Indian Penal Code. 3. The accused was charged for committing offence(s) punishable under Sections 498-A, 323, and, under Section 506 of the Indian Penal Code. In proof of the prosecution case, the prosecution examined twelve witnesses. 3. The accused was charged for committing offence(s) punishable under Sections 498-A, 323, and, under Section 506 of the Indian Penal Code. In proof of the prosecution case, the prosecution examined twelve witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded by the trial Court, wherein he claimed false implication. However, he did not lead any evidence in his defence. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. However, the learned first appellate Court reversed the judgment rendered by the learned trial Court, and, recorded an order of acquittal upon the accused. 5. The State, is, aggrieved by the judgment of acquittal recorded by the learned first appellate Court. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned first appellate Court, standing not, based on a proper appreciation, by it, 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 being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. On the other hand, the learned counsel appearing for the respondent/accused has with compatible force and vigour, contended that the findings of acquittal recorded by the learned first appellate Court, standing, based on a mature and balanced appreciation of evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, hence evaluated the entire evidence on record. 8. The solitary reason, as assigned by the learned first appellate Court, for proceeding to make an order of acquittal, upon, the convict for the offences charged, is, squarely grooved upon failure of the prosecution, to prove qua the convict/accused, subjecting his wife to cruelty, on account of hers not acceding to his demands for dowry. The aforesaid solitary reason, as assigned by the learned first appellate Court, is, extremely shaky, and, is anchored, upon, gross misappraisal, of, relevant evidence. The prosecutrix, while stepping into witness box, during the course of cross-examination, has hence efficaciously proven the, genesis of the occurrence, as borne in FIR embodied in Ext. The aforesaid solitary reason, as assigned by the learned first appellate Court, is, extremely shaky, and, is anchored, upon, gross misappraisal, of, relevant evidence. The prosecutrix, while stepping into witness box, during the course of cross-examination, has hence efficaciously proven the, genesis of the occurrence, as borne in FIR embodied in Ext. PW1/C. During the course of hers being held, to, a rigorous cross-examination, by the learned defence counsel, she did not make any voicing(s), for, thereupon her testification, embodied in her examination-in-chief, hence being construable to stand eroded. Further more, the injuries inflicted by the accused, on her person, with the user, of, danda(s) Ext. P-1 and Ext. P-2, recovered under memo, borne in Ext.PW6/A, also find reflection in MLC, borne in Ext. PW12/A. PW-12, who prepared, and, proved the apt MLC borne in Ext. PW12/A, and, wheretowhom the aforesaid weapon(s), of, offence were shown, has, in his examination-in-chief, made echoing(s), of, the injuries, reflected in Ext. PW12/A, being causable, on the person of the victim, by user thereon, of, Ext. P1 and Ext. P2. 9. In aftermath, with the credible testimony rendered qua the occurrence, by prosecutrix hence obtaining succor, from, medical evidence, thereupon it was rather inapt for the learned Sessions Judge, Hamirpur, to not affirm the verdict of conviction, and, imposition of consequential sentence(s), encumbered upon the convict, by the learned trial Magistrate. Contrarily, he has misappraised, the, aforesaid testimony of the prosecutrix, and, also by his misappraising the testification(s), of, ocular witnesses to the occurrence, who stepped into witness box, respectively as PW-3 and PW-6, he has hence rendered perverse, and, absurd findings, of, acquittal. 10. Be that as it may, the learned counsel appearing, for the respondent has contended with vigor that with both PW-3 and PW-6, the ocular witnesses to the occurrence, turning hostile, hence no credence is meteable vis--vis their respective testification(s). 10. Be that as it may, the learned counsel appearing, for the respondent has contended with vigor that with both PW-3 and PW-6, the ocular witnesses to the occurrence, turning hostile, hence no credence is meteable vis--vis their respective testification(s). However, the aforesaid argument addressed before this Court, by the learned counsel for the respondent, is unmeritworthy, (a) given PW-3 and PW-6, though, in their respective examination(s)-in-chief, reneging from their respectively recorded previous statement(s) in writing, yet upon both, with the permission of the learned trial Court, being subjected to cross-examination, by the learned APP concerned, theirs making acquiescing(s), qua the factum of theirs, on over-hearing shrieks, of, the prosecutrix, as emanated from the room, bolted from inside, theirs proceeding thereupto, and, only upon theirs breaking open the door, and, theirs making ingress thereinto hence theirs sighting the accused belaboring his wife, with, danda. The effect of the aforesaid echoing(s) made by PW-3 and by PW-6, hence firmly establish the charge against the accused. 11. As a corollary, with both PW-3 and PW-6, rather lending utmost corroboration, to, the testification of PW-1, besides when medical evidence also concurs with the testification(s), of, all the aforesaid witnesses, besides when the recovery made nder memo Ext. PW6/A, of, Ext. P-1 and Ext. P-2 is proven, thereupon the findings of conviction pronounced upon the accused, warrants its being maintained, whereas, the verdict of acquittal, pronounced by the learned first appellate Court, warrants its being reversed. 12. However, at this stage, the learned counsel for the respondent/accused, has contended with much vigor, before this Court (a) that, with the witnesses, to, recovery memo rather turning hostile, thereupon no probative vigor, being assignable to recovery memo, borne in Ext. PW6/A, and, also hence the testification(s) of the ocular witnesses, to the occurrence, being rendered incredible. Nowat, the effect of ocular witnesses, to recovery memo Ext.PW6/A, reneging, from their respective previous statements recorded in writing, is to stand construed, alongwith the factum, of theirs in their respective cross-examinations, to which they stood subjected to by the learned Public Prosecutor "on" theirs standing declared hostile, thereupon, hence admitting the factum of their signatures occurring thereon. Nowat, the effect of ocular witnesses, to recovery memo Ext.PW6/A, reneging, from their respective previous statements recorded in writing, is to stand construed, alongwith the factum, of theirs in their respective cross-examinations, to which they stood subjected to by the learned Public Prosecutor "on" theirs standing declared hostile, thereupon, hence admitting the factum of their signatures occurring thereon. Consequently, when during course thereof, they rather admit the occurrence of their signatures, on, the relevant memo(s), (i) thereupon stands attracted the mandate of Section 91 and 92 of the Indian Evidence Act, whereupon, they "on" admitting the occurrence of their signatures thereon, they hence stood statutorily estopped to renege from the recitals borne thereon, (ii) thereupon the effect of theirs orally deposing in variance or in detraction vis--vis the recitals which occur therein, gets statutorily belittled rather when they naturally emphatically hence statutorily prove, the recitals comprised in the apposite memo, theirs, orally reneging, from, the recitals borne thereon "holds no evidentiary clout" (iii) rather it is legally apt to outweigh, the creditworthiness, of, the oral testimony(s) of the apt witnesses, qua, the recovery of weapons of offence, effectuated under recovery memo Ext.PW6/A, being hence not effectuated, from, the accused. Contrarily, the uncontroverted factum, of, their authentic signatures occurring in the relevant exhibit(s), concomitantly renders the apposite recitals borne thereon, hence to hold the gravest probative worth. The ensuing sequel thereof, is that with the statutory estoppel constituted in Sections 91 and 92 of the Indian Evidence Act, barring ocular witnesses, to orally resile, from, the contents of Ext. 6/A, especially when they admit qua the apposite signatures occurring thereon, hence belonging to them, (iv) renders unworthwhile besides insignificant the factum qua theirs orally deposing in variance, of, its recorded recitals, (v) thereupon per se an inference stands enhanced qua dehors theirs reneging, from, their previous statement(s) recorded in writing, a deduction(s) standing capitalized qua thereupon theirs proving the genesis of the prosecution case, also, countervails the reason assigned by the learned first appellate Court, for its thereupon falsifying, the recitals occurring in Ext. 6/A. 13. 6/A. 13. Be that as it may, the vigour of the aforesaid conclusion would stand benumbed, only, when evidence exists on record, with, respect to the ocular witnesses concerned standing pressurized or coerced by the Investigating Officer concerned "to" emboss their signatures upon seizure memo Ext.PW-6/A. However, PW-3, an apt witness concerned, though, in her testification makes an attempt to communicate, qua, her signatures thereon, standing obtained, despite, contents thereof being not readover to her, yet, the aforesaid communication "is bereft of any vigor" (i) especially when t she "does not" make any unveilings in her testification that in the Investigating Officer concerned, purportedly omitting to read over to her the contents, of the aforesaid exhibit(s) (ii) "besides" hence hers obviously without understanding the contents thereof, hers appending her signatures thereon, the apt embossings thereon rather by her, of her signatures, "hence spurring", from, any compulsion or duress standing exerted, upon her, by the Investigating Officer (iii) "importantly" also when in respect thereof she omitted to record a complaint, with, the Officer(s), superior to the Investigating Officer concerned. Consequently, the effect of the aforesaid communications occurring in the testification(s), of, an apt witness rather does not belittle, the, hereinabove drawn inference, anvilled upon attraction "upon" the admitted factum, of her authentic signatures occurring on Ext.PW-6/A, "the" mandate of Section 91 and 92 of the Indian Evidence Act, (iv) thereupon dehors her making the aforesaid frail attempt hers rather hence statutorily proving, all, the recitals occurring therein. 14. Also when during the course, of, production in Court, of, Ext. P-1 and P-2, whereat they stood shown to PW-12, and whereat the latter, hence made vivid echoing(s) qua the injuries on the person of the victim, being causable , by the user thereon, of, the dandas Ext. P-1, and, Ext P-2, testification whereof, is, not concerted to be shattered; a) besides with the testification(s) rendered by PW-3, and by PW-6, emphatically underscoring, of, theirs oculary witnessing, the accused belaboring his wife, testification(s) whereof remained uneroded, thereupon it is to be concluded with ablomb, qua the prosecution firmly establishing the charge. 15. P-1, and, Ext P-2, testification whereof, is, not concerted to be shattered; a) besides with the testification(s) rendered by PW-3, and by PW-6, emphatically underscoring, of, theirs oculary witnessing, the accused belaboring his wife, testification(s) whereof remained uneroded, thereupon it is to be concluded with ablomb, qua the prosecution firmly establishing the charge. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned first appellate 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 appellate Court, suffers, from a perversity or absurdity of mis-appreciation, and non- appreciation of evidence on record. 16. Consequently, there is merit in the instant appeal which is accordingly allowed. The judgment rendered by the learned first appellate Court is quashed and set aside and the Judgment rendered by the learned trial Court is maintained and affirmed, and, it be forthwith carried into execution, by the learned trial Magistrate. Records be sent back forthwith.