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2018 DIGILAW 1588 (HP)

State Of H. P. v. Gian Chand @ Penu

2018-08-31

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. (Oral) - The instant appeal stands directed, against, the verdict, pronounced by the learned Additional Sessions Judge, Shimla, District Mandi, H.P. Camp at Rohru, in Criminal Appeal No. 14R of 04/02, whereunder he reversed the judgment of conviction, and, consequential thereto imposition, of, sentence(s) upon the accused, as, recorded by the learned trial Court, visavis the offences charged, and, rather acquitted the accused. The State of Himachal Pradesh, is, aggrieved therefrom, hence has instituted the instant appeal before this Court. 2. Brief facts of the case are that in the evening of 18.4.2002 at about 6.30/6.45 PM, Smt. Sanendra was coming back home from her fields and when she had reached 23 fields above, on the way accused Gian Chand suddenly came and caught her. As the complainant turned back, the accused caressed his hand on her breast and asked her to let him commit a wrong act. When the complainant released her arm from the cluches of the accused, the accused subdued her and started giving beatings to her. The accused snatched the sickle from the hand of the complainant and inflicted a blow with it on her head. On her raising a hue and cry, Ravinder Kumar and Surender Kumar came. On seeing them, the accused fled from the spot. While fleeing, the accused threatened the complainant with death. Thereafter, the husband and father-in-law of the complainant also came there and took her to the house. As a result of the beatings complainant had sustained injuries on her head, arm, shoulder and back. The complainant went to the police station, Rohru and lodged FIR Ext. PW1/A. The investigation into the case was conducted by ASI Tej Ram. He went to the spot and prepared the site plan Ext. PW8/A. He recorded the statements of witnesses supposed to be acquainted with the facts of the case. The medical examination of the complainant was got conducted from Dr. Satish Kumar. She was also subjected to X. Ray examination by the Radiologist Dr. P.C. Gupta. Medicallegal certificate Ext. PW9/A, report of the Radiologist is Ext. PW6/A and skygrams Ext. PW6/B to Ext. PW6/D were procured. The doctor had opined the injuries to be simple in nature. After the completion of the investigation, the challan was presented in the Court against the accused. P.C. Gupta. Medicallegal certificate Ext. PW9/A, report of the Radiologist is Ext. PW6/A and skygrams Ext. PW6/B to Ext. PW6/D were procured. The doctor had opined the injuries to be simple in nature. After the completion of the investigation, the challan was presented in the Court against the accused. Charge for commission of offences under Sections 354, 323, 506 of the Indian Penal Code was framed against the accused to which he pleaded not guilty and claimed for trial. 3. A charge for commission of offences, under, Sections 354, 323, 506 of the Indian Penal code, was, framed against the accused, whereto, he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses''. On closure of prosecution evidence, the statement of the accused under section 313 of the Code of Criminal Procedure, 1973 stood recorded, wherein, he pleaded false implication. However, he did not choose to lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction qua the accused. However, in an appeal carried therefrom, by, the convict before the learned appellate Court, the latter Court reversed the findings of conviction, and, rather proceeded to acquit the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned appellate Court, standing not based, on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross misappreciation, by it, of 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. The learned counsel appearing, for the respondent/accused, has also with considerable force and vigor contended qua the findings of acquittal, recorded by the Court below standing based on a mature and balanced appreciation of 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, hence evaluated the entire evidence on record. 9. 8. 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. 9. The testimony of the prosecutrix, for, hence (i) credence being meted thereto, was, enjoined to be proven to be bereft, of, gross embellishments and improvements, visavis, her previous statement recorded in writing, (ii) also enjoined emergence, of, proven corroborative therewith, hence, echoings standing borne, in, the testifications, of, the prosecution witnesses concerned, (iii) Nowat, for, gauging qua the testification of the prosecutrix standing not imbued with any vice, of, gross embellishments or improvements, visavis, her previous statement recorded in writing, (iv) the trite factum qua hers'' in the FIR, rather making a disclosure qua her fatherinlaw, arriving at the spot, and, hers omitting to make any concurrent therewith testification, while hers stepping into witness box, rather visibly, and, apparently makes emergence, of, a gross embellishment, and, improvement, visavis, her previous statement recorded in writing. Furthermore, the initial version qua the occurrence, as, embodied in the FIR, is also falsified, by the factum of the prosecutrix, in, the MLC borne in Ext. PW9/A, not, therein making any unfoldments, rather bearing apt concurrence qua the genesis, of, the occurrence, as setforth in the apposite FIR. 10. She ascribes, qua, the accused, an incriminatory role, qua his, by user of sickle rather inflicting injuries upon her person and also ascribes, visavis, the accused, an incriminatory role, of, his belaboring her with kick and fist blows. The apt injuries stand pronounced, in Ext. PW9/A, and, thereupon the prosecutrix strives to prove, through, the afore exhibit qua the injuries, embodied therein, being a sequel of the accused belaboring her with kick and fist blows, and, also the apt injuries, being a sequel of the accused delivering sickle blows, upon, her person. 11. The prosecutrix would succeed, in, the aforesaid strivings (i) only, upon the learned APP concerned, during, the course of the examination-in-chief of PW9, rather producing before him, the relevant weapon of evidence, with user whereof, the apt injuries borne in Ext. PW9/A hence stood entailed, upon her person, and, thereafter PW9 meeting vivid concurrence therewith, yet, the learned APP concerned, rather failed to make the aforesaid endeavor. PW9/A hence stood entailed, upon her person, and, thereafter PW9 meeting vivid concurrence therewith, yet, the learned APP concerned, rather failed to make the aforesaid endeavor. In aftermath, the alleged inflictions, by the accused upon the prosecutrix, of injuries as delineated therein, by his belaboring the prosecutrix with kick and fist blows, and, by his delivering rather sickle blows, upon, her person, rather stand concluded to remain unproven. Consequently, it is to be concluded qua the prosecutrix, grossly failing, to, prove the trite factum qua the injuries, borne in Ext. PW9/A, being a sequel of the accused hence belaboring her with kick and fist blows nor it can be concluded, qua his, by delivering sickle blows upon her person, his hence, inflicting the injuries, pronounced in Ext. PW9/A. 12. Be that as it may, the learned Additional Advocate General has contended with much vigor before this Court, that (i) the recovery memo Ext. PW1/B, whereunder, the sickle Ext. P1, Dhatu Ext. P2 and Kilta, were recovered, and, recovery(s) whereof, stood effectuated from the site of occurrence, rather hence proving the genesis of the prosecution case. However, no valid dependence can be made thereon, by the learned Additional Advocate General, for the reason (a) given the items, as borne therein standing not recovered at the instance of the accused, rather, their standing recovered at the instance of the prosecutrix, (b) recovery(s) thereunder being made belatedly, since the taking place, of, the illfated occurrence, (c) the prosecutrix, in her testification, failing to make bespeakings, visavis, the accused after inflicting injuries upon her person, by his using the apt sickle, his leaving, it, at the site of occurrence, (d) her aforefailing, and, even her apt failings, qua her leaving kilta and dhatu at the site of occurrence, rather begets an inference qua the preparation of Ext. PW1/B, being a sheer concoction, deployed by the Investigating Officer concerned, in, connivance with the prosecutrix. 13. PW1/B, being a sheer concoction, deployed by the Investigating Officer concerned, in, connivance with the prosecutrix. 13. Furthermore, both Surender Singh PW2, and, Ravinder Kumar PW3, who, in sequel to their respectively hearing the outcries of the prosecutrix, rather, proceeded to the site of occurrence, reneged from their respectively recorded previous statements in writing, (a) both in their respectively rendered depositions, comprised in their respectively recorded crossexaminations, as, held by the learned APP concerned, bely the apt incriminatory parts, borne in their respectively recorded previous statements in writing, appertaining to the prosecutrix making disclosures to them, visavis, the apt penal misdemeanors, standing perpetrated, upon, her person by the accused. The effect thereof is (b) that the testification of prosecutrix, qua, after completion of the occurrence, and, upon arrival of the aforesaid PWs, at the site of occurrence, hers making the apt disclosures, to them, rather standing belied. In addition, though, the prosecutrix and the other PWs, omitted to in their respectively recorded testifications, hence made any disclosure therein, qua the prosectrux, being noticed by the husband of the latter, to be accosted by the aforesaid PWs, yet, the husband of the prosecutrix contradicts them, rather he makes echoings qua his noticing the prosecutrix, to stand accosted by the aforesaid PWs. The effect thereof, is, hence with the husband of the prosecutrix rather contradicting the aforesaid trite factum, thereupon it appears, that, the prosecutrix, in connivance with her husband, rather trying to falsely implicate the accused. 14. The aforesaid reasons, also acquire immense fortification, from the prosecutrix, in, her testification, as borne in her cross examination, making acquiescences qua their being open enmity, and, inimicality, interse, her matrimonial family, and, the accused, and inimicality whereof, she articulates, to, arise from a dispute over the apt land. Consequently, with proven inimicality, interse, the matrimonial family of the prosecutrix, and, the accused, thereupon it appears qua hers'', at the instance of her husband, falsely implicating the accused. 15. Last but not the least, the factum of user of sickle, Ext. P1, by the accused, and, also the factum, of, the relevant occurrence taking place, at, the site, of, occurrence, depicted in, Ext. 15. Last but not the least, the factum of user of sickle, Ext. P1, by the accused, and, also the factum, of, the relevant occurrence taking place, at, the site, of, occurrence, depicted in, Ext. PW8/A, is falsified, (a) by the Investigating Officer concerned rather failing to send, visavis, the SFL concerned, the sickle, for ensuring emergence of an apt opinion, therefrom qua it hence carrying the blood stains, of, the prosecutrix, (b) no blood, as stood, spilled at the site of occurrence neither being collected nor standing sent to the SFL concerned for hence ensuring eruption, of, formidable evidence qua the authenticity, of, preparation of site plan, borne in Ext. PW8/A. 16. A wholesome analysis of evidence on record portrays qua the appreciation of evidence as done by the learned appellate Court, not, suffering from any perversity and absurdity nor it can be said qua the learned appellate Court in recording findings of acquittal hence committing any legal misdemeanor, in as much, as, its misappreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate qua the findings of acquittal recorded by the learned appellate Court hence meriting any interference. 17. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned appellate Court is maintained and affirmed. Fine amount, if any, be refunded. Personal and surety bonds are discharged. Record of the learned trial Court be sent back forthwith.