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Himachal Pradesh High Court · body

2018 DIGILAW 691 (HP)

Ravinder Kumar v. State Of H. P.

2018-04-18

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - Both the aforesaid appeals are being disposed of by a common verdict, since they arise from a common judgment. Both the aforesaid appeals stand directed by the appellants/accused, against, the judgment rendered on 31.03.2004, by the learned Addl. Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P. in S.T. No. 37/2005, whereby, he convicted and sentenced the appellants/accused, for, theirs committing offences punishable under Sections 307, 323, 506, 147, and, Section 149 of the IPC. 2. The facts relevant to decide the instant case are that the accused after forming an unlawful assembly in prosecution of common object of such assembly went to the school at Paprola known as Government Senior Secondary School, Paprola and asked one Jony Kumar, who was studying in that school to play Murga ( a corporal punishment given whereby one is to pick his ears after crossing the hands from beneath the legs making shape of Murga/Cock). It has been alleged that Jony Kumar refused to oblige them thereby the accused administered him beatings. After they left, Jony Kumar revealed the occurrence to his brother namely Parveen Kumar and thereafter, he went to the Principal and revealed the facts of the incident. The Principal asked him to give in writing. Thereby he gave in writing. The Principal again asked him to bring some elder from his house. Thereby he took his father namely Piar Chand to the school, who was advised by the Principal to take the complaint to the police station. As per the allegations made when Piar Chand accompanied by is son was proceeding to the police station and reached near Paprola Bazar on a traffic chowk known as Mejherena Chowk, all the accused in furtherance of their common object administered him beatings. A-1 Vijay Kumar gave hit of brick on his head, on account of which he fell unconscious, on account of the injuries suffered, he fell on the road and in the meantime when alarm was raised a traffic constable arranged for his transport to the nearby hospital. The accused could not be over powered by the traffic constable. Thereafter intimation was sent to the police station. From Police station, the police officials proceeded to the spot. The accused could not be over powered by the traffic constable. Thereafter intimation was sent to the police station. From Police station, the police officials proceeded to the spot. However, on the way, they met injured and other people carrying him to the hospital, whereby information was received and statement of one son of Piar Chand was recorded which was sent for the registration of FIR. The FIR was registered. The injured was firstly taken to Ayurvedic Hospital at Paprola, from where he was referred to Zonal Hospital, Dharamshala and from Dharamshala he was referred to PGI, Chandigarh. After the treatment he was taken back to Paprola. It has been alleged that as per the evidence regarding medical treatment and injured was found having suffered grievous injuries which were sufficient to cause death. The police carried and concluded all the investigation(s) formalities. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under section 173 of the Code of Criminal Procedure, 1973 was prepared, and, filed before the learned trial Court. 4. The accused/appellants herein stood charged by the learned trial Court, for, theirs committing offences, punishable under Sections 323, 307, 325, 506/149 and Section 147 of the IPC. In proof of the prosecution case, the prosecution examined 24 witnesses. On conclusion of recording, of, the prosecution evidence, the respective statement(s) of the accused, under, section 313 of the Code of Criminal Procedure, 1973 were, recorded by the learned trial Court, wherein, each of the accused claimed innocence, and, pleaded false implication in the case. However, they have examined, only, one witness, in their defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/appellants herein, for theirs hence committing the aforesaid offences. 6. The appellants herein/accused, stand aggrieved, by the findings of conviction recorded, by the learned trial Court. The learned counsel appearing for the appellants herein/accused, has concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross misappreciation, by him, 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 Addl. Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court, rather standing based, on a mature and balanced appreciation, by him, of the 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 Dr. Anil Sood, who issued MLC Ex. PW- 1/B, has, during the course of his testification, hence, proven all the recitals borne therein, besides has rendered, a testification, of his, at the time of subjecting the victim to medical examination, his noticing blood occurring on his clothes, and, also therein, he makes a disclosure, of the injuries noticed by him, to be occurring on the person of the victim, being causable by blow of brick on the head, and, other injuries being causable with fist blows, thereupon, medical evidence bears consonance, with, the genesis of the occurrence, borne in the apposite FIR. 10. The purported independent witnesses, to the occurrences, PW-4 and PW-5, resiled from their respectively recorded previous statements, and, even upon theirs being subjected, to cross-examination, by the learned Public Prosecutor, upon an apposite permission being granted to him, by the learned trial Court, they did not make any testification, for hence sustaining the charge. Moreover, the victim PW-13, in his testification, has, made articulations, bearing consonance with the recitals, borne in the apposite FIR. His testification is lent succor by PW-14. Nonetheless, in his crossexamination, he acquiesces to a suggestion, of, his recording in the apposite FIR, the names, of, only those accused, with whose names, he was familiar, and, of, his holding the ability to recognise other co-accused, his being familiar with their characteristic(s), physical feature, (a) thereupon, it is contended that hence, with, the Investigating Officer, not, holding any valid test identification parade, for enabling PW-13 and PW-14, to identify all the accused, thereupon, the identification of the accused, in Court, by PW-13 and PW-14, being insignificant. However, the effect of the aforesaid acquiescence besides effect of non holding, of, any valid test identification parade, by the Investigating Officer, for hence enabling PW-13 and PW-14, to identify the accused, besides concomitantly the identification of the accused, only, in Court, by PW-13 and PW-14, (a) is yet not stripped, of, its evidentiary worth, nor the apposite identification, only in Court by aforesaid, of, the accused, is unworthwhile, (b) given the learned defence counsel while holding PW-14 to cross-examination, his meteing, an affirmative suggestion, of, after completion of quarrel, PW-13 falling down, whereto a compatible affirmative echoing rather ensued from PW-14, (c) besides thereafter, with the learned defence counsel also meteing disaffirmative suggestions of no beating being given by the accused, besides no kick and fist blows being delivered by them upon the victim, whereto an apposite denial occurred, hence begets effects, (i) of the aforesaid suggestion(s) whereto apposite affirmative answers stood meted, qua thereupon the defence rather acquiescing of a scuffle, occurring, at the relevant site of occurrence, (ii) and, preponderantly, with disaffirmative suggestions, being put by the defence counsel, to PW-14, of the accused, not, belabouring PW-13, whereto a denial occurred, (iii) whereas, the apposite meteable suggestion was comprised, in, PW-13 being not belaboured by the accused, given theirs being unavialable at the site of occurrence, (iv) rather other persons being available thereat, suggestions'' whereof, remained unpurveyed to PW-14, (v) non purveying(s) whereof, garners an inference of the defence acquiescing, to, the role(s) of the accused in the relevant incident, besides also acquiescing vis-a-vis their presence at the site of occurrence (vi) more so, when the affirmative suggestion put to PW-14, of his father after the scuffle, falling down, stood meted a compatible therewith affirmative answer, and, therein occurring no articulation, of except the persons, named in the FIR, other accused being falsely arraigned, (vii) thereupon, all the aforesaid inferences rather beget a concomitant inference, of, the prosecution hence proving the presence of the accused at the site of occurrence and also sustaining the charge, (viii) predominantly with the injuries sustained upon the person of PW-13, standing not, concerted to be explicated by the defence counsel, while, his holding PW-14 to crossexamination. For alike reasons also this Court imputes probative vigour, to the corroborative testification(s) of PW-16 vis-a-vis the testification of PW-14. For alike reasons also this Court imputes probative vigour, to the corroborative testification(s) of PW-16 vis-a-vis the testification of PW-14. (ix) whereupon, the enfeebling effects, if any, of the aforestated espousals, of the, counsel for the appellant, obviously stand withered. II. Further corroboration, to, the testification(s), of the victims, as also to the testification of PW-1, is evidently meted by Ex.PW0/A, whereunder clothes, of victim, stood hence recovered, clothes whereof gathered stains of blood, as oozed, from the apposite injuries hence caused with the blow of brick, on his head, by the accused. Witness thereto, one, PW-10 Ranjit Singh, while testifying, as PW-10 has efficaciously proven contents thereof, (i) and, with the learned defence counsel, while subjecting him to cross-examination, rather omitting to mete apposite suggestion(s) vis-a-vis the clothes recovered, under Ex.PW10/A, not appertaining, to the complainant rather recovery thereof being invented, (ii) hence, it has to be concluded, of recovery(ies), of blood stained clothes, of victim Piar Chand being efficaciously effectuated. Even Ex.PW3/A whereunder recovery of brick, was, effectuated by the Investigating Officer, in pursuance, to, a disclosure statement borne in Ex.PW12/A, disclosure statement whereof stood made by accused Vijay Kumar, before him, during, the course of his subjecting him, to, custodial interrogation, (iii) does, on its incisive reading, unfold, of the investigating Officer concerned, effectuating recovery of brick, at the instance accused Vijay Kumar, Even though witnesses, to the aforesaid disclosure statement, borne in Ex.PW12/A, and, vis-avis recovery memo borne in Ex.PW3/A, namely, one Ajay Kumar, and, one Raj Kumar Sharma, though resiled, from their respectively recoded previous statements in writing. However, when both admitted their respective signatures, on Ex.PW12/A, Ex.PW3/A, and, in Ex.PW3/B, thereupon the factum of theirs admitting their signatures, on the aforesaid memos, cannot be overlooked, (iv) whereupon, they, as mandated by the provisions of section 91 and 92 of the Indian Evidence Act, stood, interdicted, besides forbidden, to depose in variance therefrom, rather with theirs being interdicted, by the statutory mandate engrafted, in the afore-referred apposite provisions, of, the Indian Evidence Act, (v) reiteratedly they by admitting their signatures existing thereon, hence impute conclusive proof qua all the recitals, occurring therein, (vi) significantly on occurrence of unflinching evidence qua their signatures existing thereon, irrefragable evidence whereof stands evinced, by theirs admitting, the prime factum of the apposite memo, rather holding their signatures, hence, when their apposite admission, sequelly statutorily belittles, the effect of theirs deposing orally in variance or in detraction thereto, (vii) naturally when they rather emphatically prove the recitals comprised in the apposite memo, thereupon it is neither appropriate nor tenable for this Court, to conclude of the recorded recitals, borne in Ex.PW12/A,Ex.PW3/A, and, in Ex.PW3/B holding no evidentiary clout nor it is legally apt for this Court, to outweigh, the creditworthiness of the testimonies, of ocular witnesses. 11. 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 therefrom the analysis of the material on record by the learned trial court not suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of germane evidence on record. 12. Consequently, both the appeals are dismissed. In sequel, the findings of conviction recorded against the accused/appellant herein is affirmed. However, taking into consideration the facts and circumstances of the case and the fact that the accused/appellants herein are first offenders besides are of young age, hence, the sentence as imposed upon them is on higher side and it is modified as under:- 13. All the accused/convicts are sentenced to undergo simple imprisonment for two years each and to pay a fine of Rs. 20,000/- each, and, in default to undergo simple imprisonment for one year each for their committing an offence punishable under Section 307 of the IPC. They are further sentenced to simple imprisonment for three months and to pay a fine of Rs. 20,000/- each, and, in default to undergo simple imprisonment for one year each for their committing an offence punishable under Section 307 of the IPC. They are further sentenced to simple imprisonment for three months and to pay a fine of Rs. 1,000/- each, and, in default to under go simple imprisonment for one month each for theirs committing offence punishable under Section 323 of the IPC. They are further sentenced to undergo simple imprisonment for three months each, and, to pay a fine of Rs. 1,000/- each and in default to undergo simple imprisonment for one month each for theirs committing offence punishable under Section 506 of the IPC. They are further sentenced to undergo simple imprisonment for three months, and, to pay fine of Rs. 1,000/ each, and, in default to undergo simple for one month each for theirs committing offence punishable under Section 147 of the IPC. However, all the sentences awarded shall run concurrently. The fine on realization shall be paid as compensation to injured Piar Chand. The period already undergone by the accused/convicts/appellants herein either in police or in judicial custody is ordered to be set off from the sentences awarded against them. All pending applications also stand disposed of. The learned trial Court is directed to forthwith execute the sentence imposed, upon, the accused/appellants herein. Records be sent back forthwith.