Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 502 (HP)

Waryam Singh v. State of H. P.

2018-03-29

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment, of 16.10.2008, rendered by the learned Sessions Judge, Kangra at Dharamshala, in, sessions Case No. 28-N/VII-2006, whereby he convicted the appellant herein, for his committing an offence punishable under Section 307/324 of Indian Penal Code (hereinafter referred to as “IPC”) also sentenced him as follows:- “...............to undergo rigorous imprisonment for five years and fine of Rs. 5,000/- under Section 307 IPC and rigorous imprisonment for six months and fine of Rs. 500/- under section 324 IPC. In default of payment of fine, the accused person No. 1 shall under go further simple imprisonment for six months and one month respectively on each count...........” 2. Brief facts of the case are that PW-1 Prittam Singh is running a confectionery shop at Kotla. PW-1 had been visiting his shop daily from his house situated in village Anoohi. On 19.12.2005, PW-1 had closed his shop as usual at about 7 p.m. and had left for his house. PW-1 had reached his village at about 9.00 p.m. PW-3 Mohinder Singh is also resident of village Anoohi. PW-3 had met PW-1. PW-1 wanted to make a telephonic call and had accordingly visited the house of his uncle Shri Tara Chand. PW-3 had accompanied PW-1 to the house of Shri Tara Chand. Afterwards PW-1 had left for his house. PW-3 had been accompanying PW-1. When PW-1 and PW-3 had been passing by the side of the house of Shri Jigri Ram, the accused persons had been noticed coming from the opposite direction. All the accused persons had asked PW-1 as to where he had been proceeding at such odd hour of the day. Thereafter accused No. 2 to 4 namely Kahan Singh, Shiv Kumar and Roshan Lal had caught hold of PW-1. Accused Waryam Singh had been armed with a dagger Ex.P-1. Accused Waryam Singh had inflicted one blow of dagger on the left side of forehead of PW-1 and another blow on his right hip. PW-1 had cried for help. He had fallen down. PW-4 Harbans Singh had been attracted to the site of occurrence. PW-4 had rushed to the rescue of PW-1. The accused had managed to escape. PW-1 had informed PW-4 of the occurrence. PW- 3, PW-4 and some others had picked up PW-1 and had taken him to the house of Shri Tara Chand. He had fallen down. PW-4 Harbans Singh had been attracted to the site of occurrence. PW-4 had rushed to the rescue of PW-1. The accused had managed to escape. PW-1 had informed PW-4 of the occurrence. PW- 3, PW-4 and some others had picked up PW-1 and had taken him to the house of Shri Tara Chand. Shri Tara Chand had found the condition of PW-1 critical. The clothes of PW-1 had been soaked in blood. PW-1 had been in agony and pain. Shri Tara Chand had provided IMFL (brandy) to PW-1. Shri Tara Chand had also applied liquor to the injuries of PW-1. Thereafter PW-1 was taken to the hospital. The matter was also reported to the police. PW-1 was medically examined by the doctor concerned. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, challan was prepared and filed in the Court. 3. The accused stood charged by the learned trial Court, for theirs committing an offence punishable under Section 307, 324/34 IPC, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 18 witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, wherein, they pleaded innocence and claimed false implication. They chose not to lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, while acquitting accused No. 2 to 4 of the charges punishable under Sections 307, 324/34 IPC, hence returned findings of conviction against appellant herein/accused Waryam Singh, for his committing offences punishable under Sections 307 & 324 IPC. 6. The learned counsel appearing for the appellant herein/accused Waryam Singh, 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 se-quelled by gross mis-appreciation, by it, of the relevant material on record. Hence, he contends qua the findings of conviction, rather warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of acquittal. 7. Hence, he contends qua the findings of conviction, rather warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of acquittal. 7. The learned Deputy Advocate General has with considerable force and vigor contended qua the findings of conviction 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, evaluated the entire evidence on record. 9. PW-1 (Prittam) in his testification ascribes, vis-a-vis accused Roshan, Shiv Kumar and Kahan Singh, incriminatory roles of theirs’ clasping him, whereafter he ascribes vis-a-vis accused Waryam Singh, an incriminatory role, of his, with the user of dagger Ex. P-1, hence inflicting injury on his forehead, and, another injury on his hip. The aforesaid ascriptions by PW-1, of incriminatory roles vis-a-vis the aforesaid accused hence acquire corroboration from the testification of PW-3 (Mohinder Singh). PW-3 is an eye witness to the occurrence. Hence, his testification in corroboration to the testification of PW-1, acquires formidable probative leverage. Both the aforesaid PWs. stood subjected to an incisive cross-examination by the learned defence counsel, (i) yet when during courses thereof, they rather make dis-affirmative e-choings vis-a-vis the apt suggestions put to them, by the learned counsel, hence they sequelly negate the effects, of all exculpatory endeavors of the defence (ii) thereupon, when hence their e-choings, occurring, in their respective testifications, are, consistent with their respectively recorded previous statements in writing and, also when each depose with inter-se corroboration besides with inter-se harmony, qua, the genesis of the occurrence, concomitantly hence, their respective testifications, are, not drained of their probative vigor. 10. 10. The mere factum of purported interestedness of PW-3, arising from, his being the neighbour of the victim, would not, perse shred the efficacy of his testification, in corroboration to the testification of PW-1, unless, (a) cogent evidence surgesforth in display of his rendering a tainted/slanted version qua the occurrence (b) inference whereof would arise only when upon making an incisive reading of his testification, rather graphic under-linings hence emanating qua his contriving the version qua the occurrence, (c) or his improving or embellishing upon his previous statement recorded in writing, (d) or graphic evidence surges-forth in display of his being an invented and contrived witness. However, as aforestated with both PW-1 and PW-3 rather in their respective testifications hence e-choing a consistent version qua the occurrence, thereupon the mere factum of any purported interestedness, of, PW-3, arising from his being a neighbour of the victim, would hence not render his testimony to be incredible. 11. Further more, with the defence also being unable to establish the trite factum of the accused being misidentified by both PW-1 and, by PW-3, rather contrarily with firm evidence surging forth qua the accused being previously known to the victim, and, to PW-3, thereupon with the prosecution, hence, firmly establishing the identity of the accused, hence, a firm inference is engendered of there being no misidentification of the accused by either PW-1 and, by PW-3. 12. Be that as it may, the version qua the incident consistently testified, by PW-1 and by PW-3, was also enjoined, to, beget corroboration from medical evidence. PW-15 (Dr. Raman Sharma), who subjected the victim to medical examination, and, subsequent thereto also prepared the apposite MLC, borne in Ex. PW-15/A, has, during the course of his examination-in-chief, made articulations, in consonance with the injuries observed by him in Ex. PW-15/A, to be occurring on the person of PW-1, injuries whereof are extracted hereinafter:- “1. Incise wound over left side of forehead of the size of 2 x 0.5 cm x 0.5 cm. The margins of the injuries were clear. Blood clots were present. 2. Incised wound over right gluteal region of the size of 3 x 1 cm x 1 cm. Margins were clear. Blood clotting was present. Back of underwear was full of blood cloths. I reserved my opinion about injury No. 1, which was to be given after 72 hours of observations. Blood clots were present. 2. Incised wound over right gluteal region of the size of 3 x 1 cm x 1 cm. Margins were clear. Blood clotting was present. Back of underwear was full of blood cloths. I reserved my opinion about injury No. 1, which was to be given after 72 hours of observations. In my opinion, injury No. 2 was simple in nature, but dangerous to life, if not treated well in time and the same was caused with sharp edged weapon within probable duration of 6 hours.” 13. PW-15 has opined of injury No. 2 being simple in nature, yet dangerous to life, if not treated well in time. He has continued, to, testify of injury No. 2, being causable by user of a sharp edged weapon, and, the probable time, of its occurrence being six hours prior, to, his subjecting the victim to medical examination, thereupon the apposite injuries are relatable to the time of occurrence. He firmly testifies of dagger Ex. P-1, being the weapon, with user whereof, the injuries noticed by him to be occurring on the person of the victim, were hence caused. The afore-referred testification of PW-15, imminently synchronizes with the testifications of PW-1, and of PW-3, especially vis-a-vis the time of occurrence, borne in the apposite FIR. Moreover, with dagger (Ex. P-1) with user whereof, PW-1 and, PW-3 hence consistently testify of injuries being suffered, on the person of PW-1/the victim, being also alike them, also, standing testified by PW-15, to be the weapon, with user whereof the injuries depicted in Ex.PW-15/A, were hence caused, (i) thereupon it is inevitable to conclude that the testification of PW-15 is in absolute consonance with the testifications’ of PW-1 and, of PW-3, whereupon, it is befitting to conclude of the prosecution being able to prove the charge against the accused. 14. Apart therefrom, the prosecution was also under an obligation, to prove the making of an efficacious recovery of dagger (Ex.P-1), from, the person of accused Waryam Singh, by the investigating officer concerned. Ex. PW-6/A, is, the disclosure statement, made by accused Waryam Singh vis-a-vis the Investigating Officer concerned, especially during, the course of his being subjected to custodial interrogation, wherein occur e-choings, of the place of keeping and hiding of, Ex. P-1 (dagger) by accused Waryam Singh. Ex. PW-6/A, is, the disclosure statement, made by accused Waryam Singh vis-a-vis the Investigating Officer concerned, especially during, the course of his being subjected to custodial interrogation, wherein occur e-choings, of the place of keeping and hiding of, Ex. P-1 (dagger) by accused Waryam Singh. One of the witnesses thereto, is PW-6 (Vijay Kumar), who during his testification, has hence proven contents thereof. In sequel to Ex. PW-6/A, the investigating Officer concerned, under Ex. PW-1/B, effectuated the recovery of Ex.P-1. The contents of Ex.PW-1/B stand proven by PW-3 Mohinder Singh, a witness thereto. In sequel, with both the disclosure statement borne in Ex. PW-6/A and, the recovery memo borne in Ex.PW-1/B hence being sufficiently, proven, by witnesses’ thereto, (a) thereupon, the aforesaid exhibits acquire firm probative vigor, (b) whereupon it is apt to conclude, of, the prosecution succeeding in proving the making of an efficacious recovery of weapon of offence (Ex. P-1) under memo Ex.PW-1/B. The effect of efficacious proof being hence lent vis-a-vis the valid execution of disclosure statement, and, vis-a-vis the valid execution of recovery memo, borne respectively in Ex. PW-6/A, and, in PW-1/B, is, of hence the prosecution lending added corroboration, to the testifications’ of PW-1, and of PW-15. 15. Accentuated vigor to the aforesaid inference, is, garnered by clothes Ex. P-2 to P-6 belonging to PW-1, standing recovered, under memo Ex. PW-3/A, memo whereof stands efficaciously proven by PW- 3, one of the witnesses thereto, to be hence validly executed. Conspicuously, when P-2 to P-3 comprising respectively, the Pant, and, underwear of the victim and both carry thereon cut marks, corresponding to the injuries suffered vis-a-vis the gluteal region of the victim, whereon, both PW-1, and, PW-3 also testify of accused waryam Singh, inflicting blows with user of dagger Ex.P-1, besides also PW-15 alike therewith, testifying of his noticing injuries to be occurring thereat, thereupon, hence the prosecution has succeeded in proving the charge vis-a-vis accused Waryam Singh. 16. The learned counsel for the appellant herein, has, with force contended, that with PW-15 e-choing, in, his testification qua injury No. 2 being simple in nature, yet dangerous to life, if not treated well in time, hence the prosecution being unable to prove the charge under Section 307 of IPC. 16. The learned counsel for the appellant herein, has, with force contended, that with PW-15 e-choing, in, his testification qua injury No. 2 being simple in nature, yet dangerous to life, if not treated well in time, hence the prosecution being unable to prove the charge under Section 307 of IPC. However, the aforesaid submission is negated, by the factum of (i) the beacon of light, for sustaining a charge under Section 307 of IPC, being not comprised in the factum of the region whereon injuries are inflicted (ii) nor upon the Doctor’s opinion rather the apt beacon of light, is mobilized, from, the trite proven factum of the offender/offenders concerned, doing any “act” with his or theirs carrying such intention or knowledge, and, under such circumstances that, if he or they by that act, caused death, he/they would be guilty of murder (iii) preponderantly dehors, the aforesaid proven inchoate acts though also provenly carrying the aforesaid intention or knowledge rather remain un-consummated, (iv) nonetheless, the apposite proven inchoate acts, provenly, carrying the ingredients, of, knowledge/intention, as, embodied in section 307 of IPC, yet, rendering the accused concerned, to face the penal consequences of theirs proven inchoate acts, punishment in respect whereof is embodied in the first part of Section 307 of IPC. “307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] illustration (a) A, shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of] this section. (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.” 17. In other words, for a charge under Section 307 of IPC, to, achieve success, the mere proof of preparations of the offender or offenders concerned, to, commit an offence, also further proof qua theirs’ carrying the requisite mens rea or the intention to commit an act, which is likely to cause death of the victim, rather is the apt sine qua non. Moreover, a charge constituted under the first part of section 307 IPC and, on proof of ingredients whereof, entails imposition of punishment extending up to 10 years, upon the accused, and, which may extend up to 10 years (i) whereas the second part of Section 307 of IPC, begets attraction upon the inchoate acts’, of the accused being furthered by proven injuries even if simple in nature, being inflicted upon the victim, (ii) besides for attracting the mandate of the second part of Section 307 of IPC, the evident proof of the manner of aggression perpetrated by the accused upon the victim hence is visibly begetting endangerments to the latter’s life, is also imperative, (iii) endangerments whereof is to be gauged also from the weapon of offences used by the accused, and, portions of the body of the victims whereon it is struck (i) thereupon the innate nuance, of, the provisions borne in Section 307 IPC, provisions whereof are extracted hereinbefore, is, of the mere rendition of an opinion concerned, of the relevant injury being dangerous to life, if, not treated well in time, rather not galvanizing any inference of the accused, not, carrying the requisite mens rea or intention, to, by his/their acts, hence, spelling endangerments vis-a-vis the life of the victims (ii) rather, when the weapon of offence, is, a sharp edged weapon, and, with user whereof, an injury was provenly caused in the gluteal region or on the vital part of the body of the victim, injuries whereof, even if not lethal, yet, with the apt injuries stand provenly suffered by the victim, with user of Ex.P-1, by accused Waryam Singh, (iii) does constrain a conclusion, of, the inchoate act prior thereto, of the accused, to, hence endanger the life of victim, when, also provenly stood carried forward, thereupon the second part of section 307 of IPC, begets attraction, dehors, the opinion of PW-15, whereupon, hence the prosecution hence has firmly established charge under Section 307 IPC and, also the imposition of sentence upon him, is both just and tenable. 18. 18. Though punishment under Section 307 of IPC was imposable upon accused Waryam Singh, whereas, the learned trial Court imposing upon him a punishment, falling within, the first part of section 307 of IPC, though has hence committed an illegality, yet, with the State of Himachal Pradesh not filing any appeal for enhancing the sentence of imprisonment imposed upon the appellant herein, hence it is not fit, and, appropriate to interfere with the sentence of imprisonment, recorded by the learned trial Court, against the accused. 19. A wholesome analysis of the evidence on record, portrays that the appreciation of evidence as done by the learned trial Court, not suffering from any perversity and absurdity nor it can be said that the learned trial Court, in recording findings of conviction, has committed any legal misdemeanor, in as much, as, its mis-appreciating the evidence, on record or its omitting to appreciate the relevant and admissible evidence. In aftermath this Court does not deem it fit, and, appropriate that the findings of conviction recorded by the learned trial Court merit any interference. 20. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.