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2018 DIGILAW 878 (HP)

Prakash Chand v. State of H. P.

2018-05-14

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant petition stands directed, against, the judgment recorded, on 29.06.2011, by the learned Addl. District & Sessions, Judge, Fast Track Court, Hamirpur, in Cr. Appeal No.50/2009, whereunder, he affirmed the pronouncement, of, acquittal, made upon, the petitioner herein, by the learned trial Court vis-a-vis, the charges framed, under Section 353, and, under Section 506 of the IPC, whereas, he proceeded to convict the accused/petitioner, for, his committing, an offence punishable under Section 352 of the IPC, and, thereafter proceeded, to, sentence him. 2. The facts relevant to decide the instant case are that on 19.12.2006 at about 4.35 p.m., Pradhan of Gram Panchayat Lohdar made a telephonic call to Police Station, Hamirpur. It was revealed by the complainant that a person has been creating scene and quarreling at the Panchayat Bhawan. In order to verify the information, ASI Satish Kumar along with police personnel went to the spot. Complainant Ramesh Chand, Pradhan Gram Panchayat, Lohdhar got his statement recorded with ASI Satish Kumar. It was revealed by him that on the same day there was quorum of the Panchayat and he along with Up Pradhan Sansar Chand, Secretary Ramesh Chand and Ward Members Asha Devi, Dharam Singh, Roshan Lal, Jagjit Singh, Pushpa Devi etc. were present. When the sixth case listed for the day was called then Parkash Chand forwarded an authority letter on behalf of Pushpa Devi, Sartaju Devi and Sunita Devi. As the case had been between him and Pushpa Devi and others. Ward members Roshan Lal, Jagjit Singh and Dharam Singh were dealing with the matter and when the talks were on, Parkash Chand turned on tape recorder so as to record the proceedings. The Panchayat objected to this act and told him that he cannot turn on the tape recorder. Parkash Chand did not mend his ways whereupon, Up Pradhan Sansar Chand tried to turn it off. At this Parkash Chand slapped the Up Pardhan Sansar Chand 3-4 times, whereas, they were at pains to save Sansar Chand. Parkash Chand caught Ward member Sukh Ram from his neck, whereas, he was threatening all of them. He lateron took away the cassette and broke it. On the basis of aforesaid statement, FIR was registered in the police station concerned against the accused and thereafter the police completed all the codal formalities. 3. Parkash Chand caught Ward member Sukh Ram from his neck, whereas, he was threatening all of them. He lateron took away the cassette and broke it. On the basis of aforesaid statement, FIR was registered in the police station concerned against the accused and thereafter the police completed all the codal 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 was prepared, and, filed before the learned trial Court. 4. The accused/petitioner herein stood charged by the learned trial Court, for his, committing offences punishable under Sections 353 and 506 of the IPC. In proof of the prosecution case, the prosecution examined 13 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of acquittal in favour of the accused/petitioner herein, for his, committing offences punishable, under, Section 353, and, Section 506 of the IPC. In an appeal preferred therefrom by the State, before, the learned Addl. Sessions Judge concerned, the latter affirmed the apposite findings of acquittal of accused under Section 353 and under Section 506 of the IPC, recorded, in, the judgment pronounced by the learned trial Court, however, he proceeded to convict the accused, for his, committing an offence punishable, under, Section 352 of the IPC. 6. The petitioner herein/accused hence stands aggrieved, by the findings of conviction recorded, by the learned Addl. Sessions Judge concerned, against him, for his committing an offence punishable, under Section 352 of the IPC. The learned counsel appearing for the petitioner herein/accused, has, concertedly and vigorously contended qua the findings of conviction, recorded by the learned Addl. Sessions Judge concerned, standing not based on a proper appreciation, by him, 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 revisional jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Addl. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its revisional 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 Addl. Sessions Judge, 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. Initially, it is to be borne in mind, that the State of Himachal Pradesh, had not proceeded, to assail the judgment, recorded by the learned Additional Sessions Judge concerned, whereby, it proceeded to affirm, the acquittal of the accused vis-avis offences, constituted under Section 353, and, under Section 506, of, the IPC. The effect of the State of H.P., not, instituting an appeal before this Court, for, assailing the judgment rendered, by the learned Additional Sessions Judge concerned, in affirmation, of the judgment pronounced by the learned trial Court, qua, the offences constituted under Section 506, and, under Section 353 of the IPC, (i) is hence, of, the judgment pronounced by the learned Additional Sessions Judge concerned, whereby, he affirmed, the acquittal of the accused/petitioner vis-a-vis notice of accusation under Section 506, and, under Section 353 of the IPC, hence acquiring conclusivity. The effect of conclusivity being hence acquired, by the judgment of acquittal, pronounced by the learned Additional Sessions Judge concerned, vis-a-vis offences in respect, whereof notice of accusation, was put to the accused, also carries the further hereinafter referred effect(s), especially, when the hereinafter extracted provisions, borne, in Section 352, and, in Section 353 of the IPC:- “352. Punishment for assault or criminal force otherwise than on grave provocation.- Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 353. 353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” (i) do on their combined incisive reading, make, candid manifest display(s) of initial ingredients thereof, visibly holding commonality inter se both, apt commonality whereof arising from (ii) both contemplating proven assault or proven use of criminal force, (iii) excepting provisions, borne, in Section 353, of, the IPC, holding a further contemplation, of, proven user, of assault or criminal force, by the accused being vis-a-vis a public servant, for, deterring him, from, discharging his public duty, as a public servant. Given, the aforesaid apt commonality(ies) inter se the provisions, borne, in Section 353 and in Section 353 of the IPC, and, also bearing in mind, qua notice of accusation, being, put to the accused, only, with respect, to his committing offences punishable under Section 353, and, under Section 506 of the IPC, (iv) notice of accusation whereof, led to concurrent verdicts of acquittal being thereon hence pronounced, (v) thereupon, further, for the reasons aforestated, given the State being not aggrieved therefrom, hence, the findings of acquittal, concurrently, recorded by both the learned Courts below, with respect to offences qua which notice of accusation was put tot he accused, rather, acquiring conclusivity, (vi) obviously begetting a sequel, of, with the offences constituted under Section 353, and, under Section 506 of the IPC, being concurrently held to be not proven, (vii) whereas, rather proven use of assault and proven use of criminal force, by the accused, when hence comprise the apt ingredients common inter se the provisions, occurring in Section 353 and the, one, borne in Section 352 of the IPC, rather being imperative, for, sustaining the impugned judgment. (viii) In aftermath, the learned Additional Sessions Judge concerned, has mis maneuvered himself, and, has fallen in gross error, and, thereupon has proceeded, to erroneously conclude, of, proven criminal force being used by the accused, upon, the victim/complainant. (ix) Conspicuously, also with the notice of accusation, only, being vis-a-vis the offences, constituted, under Section 353 of the IPC, and, the one under Section 506 of the IPC, in respect whereof orders of acquittal stood concurrently pronounced, whereas, it being not vis-a-vis an offence, under, Section 352 of the IPC. 10. Be that as it may, the reason assigned, by the learned Appellate Court qua the conviction, of the accused, pronounced vis-a-vis the provisions, borne in, Section 352 of the IPC, rather holding validity, given it, being vis-a-vis an offence lesser, in, penal gravity visa- vis the apt offence, borne in the notice of accusation, rather would be acceptable, only if (a) the offence in respect whereof the conviction was made, (b) not holding, any, ingredient(s) hence holding any commonality vis-a-vis the offence under Section 353 of the IPC, (c) contrarily, hereat with apparent apposite aforesaid commonality(ies), hence occurring inter se both apt provisions, thereupon, the aforesaid assigned reason rather falters. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned Addl. Sessions Judge concerned, 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 Courts below, rather suffers from a gross perversity or absurdity, of, mis-appreciation and non appreciation, of, germane evidence on record. 12. Consequently, the instant petition is allowed. In sequel, the judgment impugned hereat is set aside, whereas, the judgment pronounced by the learned trial Court in Police Challan No.27-II-07 on 12.10.2009, is, affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.