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Himachal Pradesh High Court · body

2018 DIGILAW 1838 (HP)

Rajinder Sharma v. State of H. P.

2018-10-23

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal stand directed, against, the verdict rendered by the learned Additional Sessions Judge, Fast Track Court, Una, in criminal case No. 17/2009, where under, he returned findings of conviction, upon, the accused in respect of charges framed, under, Sections 341, 323, 307, 506 read with Section 34 IPC. 2. Briefly stated the case of the prosecution is that on 2.6.2009 at about 2 p.m. near railway bridge near village Badehar, Tehsil and District Una, the accused persons after forming common intention, wrongly restrained Kulwinder Singh, Surinder Kumar and Sandeep Kumar from proceeding further towards their residences by blocking the road. Accused persons had parked their Maruti car bearing registration No. HP-20-9145 right in front of the motor-cycle driven by injured Sandeep Kumar. Thereafter, accused Shibbu took out an iron tyre liver from his car and hit Sandeep Kumar. Other accused persons also gave fist and kick blows on Sandeep Kumar, Surinder Kumar and Kulwinder Singh. It is also alleged that accused persons, thereafter left the place of occurrence after threatening the complainants with dire consequences. Injured Sandeep Kumar drove his motor cycle with the help of plug directly and reached the hospital for treatment. The matter was reported to the Police by the complainant Kulwinder Singh, whose statement under Section 154 Cr. P.C. Ext. PW1/A was recorded by the police. The police investigated the present case. The injured persons were medically examined in Zonal Hospital Una. After conducting X-ray examination upon the injured, the Doctor opined that the injuries sustained by Sandeep Kumar were dangerous to life, had it not been treated. However, the injuries on the persons on Surinder Kumar and Kulwinder Singh were simple in nature. The IO, during investigation of this case, prepared site plan Ext.PW14/B. He also took into possession the blood stained shirt Ext. P-2, vide memo Ext. PW2/A. The vehicle HP-20-9145 along with documents and keys, iron rod/tyre liver Ext. P-1 were also taken into possession by the I.O. vide memo Ext. PW2/C. MLC of Sandeep Kumar Ext. PW7/A,MLC of Surinder Kumar Ext. PW7/B and MLC of Kulwinder Singh Ext. PW7/C, treatment summary issued by Dr. Indu Bhardwaj Ext. PW9/A of Sandeep Kumar, PW9/B of Surinder Kumar, X-ray form Ext. PW7/D of Sandeep Kumar, C.T. Scan report Ext. PW8/A of Sandeep Kumar, X-ray of Surinder Kumar, Ext. PW7/E and X-ray of Kulwinder Singh Ext. PW7/A,MLC of Surinder Kumar Ext. PW7/B and MLC of Kulwinder Singh Ext. PW7/C, treatment summary issued by Dr. Indu Bhardwaj Ext. PW9/A of Sandeep Kumar, PW9/B of Surinder Kumar, X-ray form Ext. PW7/D of Sandeep Kumar, C.T. Scan report Ext. PW8/A of Sandeep Kumar, X-ray of Surinder Kumar, Ext. PW7/E and X-ray of Kulwinder Singh Ext. PW7/F were collected by the I.O. Police has also taken into possession the photo copies of the Insurance policy Ext. PW14/C and Driving licence of Shiv Kumar Ext. PW14/D. During investigation the IO came to the conclusion that the accused persons have committed an offence punishable under Sections 341, 323, 307, 506 IPC read with Section 34 IPC. 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed in the Court concerned. 4. The accused was charged by the learned trial Court, for his committing offences punishable under Sections 341, 323, 307 and 506 IPC. In proof of the charge, the prosecution examined fifteen witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. However, he did not lead any defence evidence. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction upon the accused/appellant herein. 6. The appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the appellant, 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, by it, of the material on record. Hence, he contends qua the findings of conviction, being reversed 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 that the findings of conviction, recorded by the Court below standing based on a mature and balanced appreciation, by it, of evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication. 8. 7. On the other hand, the learned Additional Advocate General, has with considerable force and vigour, contended that the findings of conviction, recorded by the Court below standing based on a mature and balanced appreciation, by it, of 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. The prosecution case is hinged, upon, the testimony, of, ocular witnesses, to, the occurrence, who respectively stepped into witness, as PW-1, PW-2 and PW-3. Their respectively rendered versions, qua the occurrence, (a) are bereft of any interse contradiction, (b) are bereft of any intrase contradiction, interse their testifications, borne in their respective examinations-in-chief, vis-à-vis their respective cross-examinations, (c) are bereft of gross embellishments or improvements, vis-à-vis their respectively rendered previous statements in writings. Consequently, their versions/testifications, qua the occurrence, are both credible, and, trustworthy. Apart from the afore credible evidence, adduced in proof of the charge, the prosecution, had, also depended, upon, the effectuation of recovery of Ext. P-1, i.e. the iron rod, used by accused, in his inflicting blows, on the person of victim, recovery whereof stood effectuated, under, memo borne in Ext. PW2/C. The afore Ext. P-1, was, during the course of custodial interrogation of the accused, produced by him, before the Investigating Officer concerned, (i) thereupon there was no dire necessity, of, prior thereto any disclosure statement of the accused, being recorded hence by the Investigating Officer concerned, (ii) nor hence any omission, vis-à-vis the preparation, of, a disclosure statement of the accused, prior to preparation, of, Ext. PW2/C, renders the latter exhibit to be ingrained with any vice of any infirmity. The apposite witnesses thereto, respectively stepped into witness box, as PW-6 and PW-13. In their respectively rendered examinations-in-chief, they admit the factum, of, theirs respectively signaturing, the afore Ext. PW2/C. However, even if, PW-13, in his deposition, comprised in his cross-examination, has rendered a communication qua Ext. P-1, rather being not handed over, in his presence, to the Investigating Officer, by the accused, (iii) thereupon, the learned counsel for the appellant contends that the recitals borne in Ext. PW2/C. However, even if, PW-13, in his deposition, comprised in his cross-examination, has rendered a communication qua Ext. P-1, rather being not handed over, in his presence, to the Investigating Officer, by the accused, (iii) thereupon, the learned counsel for the appellant contends that the recitals borne in Ext. PW2/C, hence stand falsified, (iv) yet the aforesaid submission is enjoined to falter, given the attraction of the mandate of Sections 91, and, 92 of the Indian Evidence Act, vis-à-vis, his admittedly signaturing Ext. PW2/C, (v) whereupon he “on” admitting the occurrence of his signatures thereon, hence stands statutorily estopped, to, renege from all the recitals borne thereon, (vi) thereupon the effect of his orally deposing in variance or in detraction of the recitals occurtring therein, gets statutorily belittled rather when he naturally emphatically, hence, statutorily proves the recitals comprised in the apposite memo, (vii) thereupon, his orally reneging from the recitals borne thereon “holds no evidentiary clout” (viii) nor it is legally apt to outweigh, the, creditworthiness, of, the testimonys, of, the witnesses qua the recovery of Ext. P-1, as made under recovery memo Ext.PW- 2/C hence standing validly effectuated from the accused. Contrarily the un-controverted factum of his authentic signatures occurring in the relevant exhibits, rather concomitantly renders the apposite recitals borne therein, to, hold the grave 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.PW-2/C, especially when they admit that, their apposite signatures as occurring thereon hence belong to them, (ix) also concomitantly renders un-worthwhile besides insignificant, the, factum qua theirs orally deposing in variance of its recorded recitals, (x) thereupon per se an inference stands enhanced qua dehors, theirs, reneging from their previous statements recorded in writing, a, deductions standing capitalized qua thereupon, theirs, proving the genesis of the prosecution case, also countervails the afore submission addressed before this Court, for his thereupon falsifying the recitals, occurring, in, Ext.PW-2/C. 10. Moreover, with the learned defence counsel, not putting any suggestion to the afore witnesses, to the, afore recovery memo, with clear echoings therein, that in theirs’ respectively appending signatures on Ext. PW2/C, the Investigating Officer concerned exerting duress or compulsion upon them, also constrains this Court to impute, the, gravest credibility to Ext. PW2/C. 11. Furthermore, Dr. Moreover, with the learned defence counsel, not putting any suggestion to the afore witnesses, to the, afore recovery memo, with clear echoings therein, that in theirs’ respectively appending signatures on Ext. PW2/C, the Investigating Officer concerned exerting duress or compulsion upon them, also constrains this Court to impute, the, gravest credibility to Ext. PW2/C. 11. Furthermore, Dr. Y.R.Ravi, who stepped into the witness box as PW-7, has, during the course, of, his deposition occurring in his examination-in-chief, hence proven MLC Ext. PW7/A, wherein, he has delineated the injuries suffered by the victim, in sequel of his being assaulted, by the appellant herein. He in his deposition, comprised in his examination-in-chief, has, made clear, and, candid echoings, that, the injuries reflected in MLC, MLC whereof is comprised in Ext. PW7/A, being causable upon the person of the victim, by the user thereon of Ext. P1. Consequently, the afore rendered deposition of PW-7, also, corroborates the afore-referred credible prosecution evidence, as adduced, in proof of the charge. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner, apart there from, the analysis of the material on record by the learned trial Court, does not, suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of evidence on record. The impugned judgment is affirmed and maintained. 13. However, the learned counsel for the appellant/convict, makes a prayer, at this stage, for reducing the sentence of imprisonment imposed upon the appellants/convicts. He submits that the aforesaid submission hence being amenable to acceptance, given the convict, being a young person, and the sole bread earner of the family, and, his hence being enabled to reform himself. The aforesaid submission is accepted. The sentence of imprisonment imposed, upon, the appellant/convict, under Section 307 IPC, is reduced, from, three years’ rigorous imprisonment to, one year’s rigorous imprisonment. Sentence of fine, imposed upon the appellant/convict, under Section 307 IPC, is, reduced from Rs. 2000/- to Rs. 1000/-. In default of payment of fine, he shall further undergo simple imprisonment for two months. The sentence of imprisonment imposed, upon, the appellant/convict under Sections 323, 506 and 341 IPC is affirmed and maintained. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment imposed upon him. 14. 1000/-. In default of payment of fine, he shall further undergo simple imprisonment for two months. The sentence of imprisonment imposed, upon, the appellant/convict under Sections 323, 506 and 341 IPC is affirmed and maintained. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment imposed upon him. 14. Consequently, the sentences of imprisonment and of fine, imposed upon the convict, is to the extent above, hence, modified. Records be sent back forthwith.