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2019 DIGILAW 1026 (HP)

Ranjodh Singh Alias Madi v. State Of H. P.

2019-07-25

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant appeal, is, directed by the convicts/accused/appellant, against, the pronouncement made by the learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., upon, Sessions Case No.32-G/VII/06, whereunder, he convicted, besides imposed consequent therewith sentences, upon, the convicts/accused/appellants herein, for theirs committing offences punishable, under, Sections 365, 367, 323, 201 read with Section 34 of the IPC. 2. The facts relevant to decide the instant case are that at about 3.45 a.m. on 11.6.2005, Naresh Kumar, complainant came out of his house in village Haripu to attend the call of nature. Suddenly, the accused pounced upon him and they started beating him. The accused Vinay Kumar was carrying a hockry stick with which he hit on the head of the complainant. Accused Kartar Singh started the scooter bearing No. HP-40-3073 and the other co-accused Ranjodh Singh and Vijay Kumar made the complainant to sit on the scooter, while accused Kamal caught him by sitting behind him. The other two accused came on the motor cycle bearing No. HP-36-4926. When the complainant was being taken towards Bankhandi side, he tried to rescue himself near Halwai shop of Ashok Kumar and in that process, the scooter fell down. The complainant tried to run away, but all the accused again started beating him. At that spot chappals of the complainant also fell down. The liver of the scooter was damaged. The complainant was again made to sit on the motor cycle being driven by accused Vinay and caught by accused Kamal from behind. Then the complainant was taken by accused to Ranital, where his blood stains clothes were removed and he was given the other clothes to wear. He was again beaten up there and thereafter vehicle bearing No. HP-36-6908 was called and in which the complainant was asked to sit. The accused further put two cartons of liquor containing 24 bottles in the vehicle and they took him to the Police Station, Kangra where a case was got registered against him. In the police Station, Kagran an FIR Ex.PW3/A was got registered at about 6.30 a.m. Two cartons containing 24 bottles of liquor were taken into possession in the Police Station, Kangra vide seizure memo Ex.PW5/D. The motor cycle bearing No. HP36-4926 was also recovered vide memo Ex.PW5/E and the vehilce was handed over by accused Vinay Kumar. In the police Station, Kagran an FIR Ex.PW3/A was got registered at about 6.30 a.m. Two cartons containing 24 bottles of liquor were taken into possession in the Police Station, Kangra vide seizure memo Ex.PW5/D. The motor cycle bearing No. HP36-4926 was also recovered vide memo Ex.PW5/E and the vehilce was handed over by accused Vinay Kumar. In the evening when relatives of the complainant intervened, statement of the complainant, embodied in Ex.PW9/A, under Section 154 of the Cr.P.C., stood recorded and on its basis FIR Ex.PW5/A was registered against the accused. Thereafter the police started investigations in the case, and, 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/appellants herein, stood charged, by the learned trial Court, for, theirs committing offences, punishable under Sections 365, 367, 323, 201, and, under Section 506 of the IPC read with Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 10 witnesses. On conclusion of recording, of, the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, 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, returned findings of conviction, upon, the accused/appellants herein, for theirs hence committing the aforesaid offence(s). 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 mis-appreciation, by it, 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 Additional 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 it, 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. Doctor Amar Verma, who had conducted medical examination, upon, the person of the victim, and, had issued MLC Ex.PW1/A, upon, stepping into the witness box, as PW-1, has during the course of his examination-in-chief, rendered, a, testification, vis-a-vis, the authenticity, of, the recitals borne therein, (i) and, also has made, a, testification, vis-a-vis, the injury occurring over occipital region, and, borne, in Ex.PW1/A, being causable, upon, the person of the victim, examined by him, hence, with the user of hard object, like Hockey, and, the remaining injuries are testified by him, to be causable, with kick, and, fist blows. During the course of his cross-examination, he has acquiesced to a suggestion, put to him, by the learned defence counsel, vis-a-vis, the injuries borne in Ex.PW1/A being causable, if a person falls from a scooter. 10. Pw-2 Dr. Rakesh Sharma, has in his testification voiced, vis-a-vis, his after entering, upon, a reference made to him, by Dr. Amar Verma, for, his meteing dental opinion, vis-a-vis, injury No.2, borne in Ex.PW1/A, his examination thereof, inclining him to make an opinion, visa-vis, the, upper left lateral incisor tooth 1/3rd rather being broken, (i) and, the, margins thereof being rough and sharp, besides thereafter he has echoed, in his examination-in-chief, vis-a-vis, the afore injury, being causable, by user of blunt weapon, and, it being grievous in nature. 11. However, on anvil, of the afore testifications, rendered by PW-1, and, PW-2, it may not be sagacious, to record findings of conviction, upon, the convicts/appellant, as the merit-worthiness, of, ocular account(s), vis-a-vis, the relevant occurrence, for therethrough, the, charge being succored, or not, has rather to be adjudged. 11. However, on anvil, of the afore testifications, rendered by PW-1, and, PW-2, it may not be sagacious, to record findings of conviction, upon, the convicts/appellant, as the merit-worthiness, of, ocular account(s), vis-a-vis, the relevant occurrence, for therethrough, the, charge being succored, or not, has rather to be adjudged. However, apart from the testification of the victim, no independent corroborative ocular account thereto, and, vis-a-vis, the genesis of the prosecution case, rather has come, to be adduced. However, though, even the sole testification, of, the victim, who stepped into the witness box, as PW-9, would not preclude this Court, to, record findings of conviction against the accused, (i) in case, his testification, borne in his examination-in-chief, is, not stained with any gross embellishments, and, improvements, vis-a-vis, his previous statement recorded in writing, (ii) and, upon there emerging no gross contradictions, inter se, the version, qua, the genesis of the prosecution case, embodied, as, in his examination-in-chief, and, vis-a-vis, his further testification, as, embodied in his crossexamination, (iii) significantly also, upon recoveries of various items, through, memos respectively, borne in Ex.PW9/A, in Ex.PW9/B, in Ex.PW9/C, and, in Ex.PW9/D, all holding the relevant legal efficacy, inasmuch, as the afore memos being proven to be validly, and, efficaciously drawn, hence by the Investigating Officer concerned. However, for the reasons to be assigned hereinafter, this Court is coaxed to adopt the view (iv) that the sole testification of the victim, is, rather ingrained, with gross vice(s) of deep pervasive improvements, and, embellishments, vis-a-vis, his previously recorded statement in writing, thereupon, is testification being, not amenable, for meteing any credence, (v) more so, when no independent credible ocular account, rather rendering corroboration thereto, stands adduced, by the prosecution. Even though, he has in his examination-in-chief, made echoings hence corroborating, his, previous statement recorded in writing. However, in his cross-examination, he has acquiesced, to a suggestion, qua his making, the, identification, of the accused/convicts, with the help, of, a nearby light of a shop, and, the afore manner of identification, of, accused/convicts, is, a gross improvement, and, also contradicts, rather his previous statement recorded in writing, inasmuch as the afore factum, has, remained unechoed therein. However, in his cross-examination, he has acquiesced, to a suggestion, qua his making, the, identification, of the accused/convicts, with the help, of, a nearby light of a shop, and, the afore manner of identification, of, accused/convicts, is, a gross improvement, and, also contradicts, rather his previous statement recorded in writing, inasmuch as the afore factum, has, remained unechoed therein. Nowat, the consequential effect thereof, is, (vi) that with the relevant incident, taking place, at a stage, whereat rather the relevant site, was engulfed, in, deep darkness, (vii) hence rendering him defacilitated to identify, the, accused/convicts, unless, reiteratedly the afore facilitative manner of, the, victim, hence, identifying the accused/convicts, stood echoed by him, in his previous statement, recorded in writing, (viii) whereas, it remaining unechoed therein, thereupon, the afore facilitative manner of identification, of, the accused/convicts, by the victim, falls in the realm of obscurity, and, also is vulnerable to skepticism, rendering hence his deposition, borne in his examination-in-chief, wherein he has assigned, an inculpatory role, to, the accused/convicts, to be concomitantly construable hence both incredible, and, unbelievable. Even otherwise, the, afore improvements, and, embellishments, vis-a-vis, his previous statement recorded in writing, were rather remediable, through, the neighbour(s), from whose house(s) lights, the afore requisite facilitation, was purveyed to the victim, and, wherefrom the requisite decipherings, of, the identity of the accused/convict hence ensued, rather being cited as prosecution witnesses, and, his/theirs rendering succoring(s), to, the prosecution case. However, the afore neighbours though, were, important prosecution witnesses, whereas, his/theirs remaining neither cited as prosecution witnesses nor theirs/his stepping into the witness box, (ix) thereupon, the afore inter se improvement, and, embellishments, qua the afore facet, comprised inhis examination-in-chief, vis-a-vis, his previous statement recorded in writing, is neither minimal nor overlookable rather is gross, hence, it cannot be formidably concluded, that, the imputation, of, an inculpatory role by the prosecution, vis-a-vis, the accused/convicts, being either meritworthy or credible. 12. Be that as it may, even if the afore pervasive infirmity, has, stained the prosecution case, (a) nonetheless, the afore was remediable, upon, the prosecution, proving qua the recovery memos, respectively borne, in Ex.PW9/A, in Ex.PW9/B, in Ex.PW9/C, and, in Ex.PW9/D, and, wherethrough, incriminatory items, as, disclosed therein, were recovered, being all hence efficaciously, and, validly drawn. 12. Be that as it may, even if the afore pervasive infirmity, has, stained the prosecution case, (a) nonetheless, the afore was remediable, upon, the prosecution, proving qua the recovery memos, respectively borne, in Ex.PW9/A, in Ex.PW9/B, in Ex.PW9/C, and, in Ex.PW9/D, and, wherethrough, incriminatory items, as, disclosed therein, were recovered, being all hence efficaciously, and, validly drawn. However, the recovery memo, borne in Ex.PW9/A, wherethrough, hockey stick, stood recovered, is not amenable, for, ensuring, from this Court, any assured conclusion, qua it being validly, and, efficaciously drawn, hence, within the domain of Section 27, of, the Indian Evidence Act, (b) as, even though in contemporaneity, vis-a-vis, the, drawing(s), and, preparation(s) of the afore memos, the accused rather were in custody, (c) hence, when preceding therewith, the Investigating Officer concerned, was enjoined, to, record a valid disclosure statement, of the accused qua the place, of, keeping, and, hiding of the afore weapon of offence. However, the imperative drawing, of, the afore disclosure statement, and, conspicuously, the, afore drawing occurring, prior to, the, making of, the, recovery memo, borne in Ex.PW9/A, rather remained undrawn, hence, by the Investigating Officer, whereupon, the recovery, of, hockey, through Ex.PW9/A, cannot be concluded, to be, any efficacious recovery hence therethrough. Furthermore, an accentuated vigour, to, the afore inference, is, garnered by the factum (d) that despite the accused thereat, being in police custody, theirs handing, over the hockey stick, to the investigating officer concerned, and, with no explanation being purveyed, by the Investigating Officer concerned, qua wherefrom it stood retrieved, by the accused, for, thereafter, it being efficaciously handed over, to the investigating officer concerned, (e) thereupon, for want of the afore explanation being meted, by the investigating officer concerned, rather it appears, that the, handing over, of, the hockey stick, by the accused concerned, to the investigating officer concerned, and, in respect whereof memo borne in Ex.PW9/A, stood drawn, being construable, to be, a sheer contrivance, and, stratagem employed by the investigating officer concerned, to after, his, may be, purchasing the hockey stick, from the market, his making, the, afore inefficacious recitals, in, the memo(s) concerned. Corollary whereof, is qua, though upon, the apposite recovery memo, hence embodying therewithin, hence, composite recitals, vis-a-vis, the place of hiding, and, camouflaging, of the relevant weapon of offence, was, hence construable to be validly drawn, and, also therethroughs, an inference, maybe gainable, qua hence valid recovery(ies), of the, relevant weapon of offence, rather standing effectuated, (f) yet when the recovery memo is not, a, composite memo, and, when it also does not, obviously disclose therein, the prime factum, that after the accused/convicts, during, the course of their custodial interrogation, unfolding, to the investigating officer qua the place of keeping, and, hiding of hockey stick, and, thereafter theirs leading, the, Investigating Officer, to the place, of its keeping, and, hiding, (f) rather when the weapon, of, offence, only during, the course of custodial interrogation, of, the accused, stood handed over, in the police station, to, the Investigating Officer concerned, rather would render the preparation of the afore memo, to be invalid, and, also it being construable to be not holding any legal efficacy. Consequently, with deep inefficacies, hence, ingraining the drawing of the requisite memos, this Court, is, of the formidable view, qua it, also constraining this Court, to conclude, that, the prosecution rather failing to prove the charge against the accused hence beyond all reasonable doubts. 13. Apart from the above, the items sent to the FSL concerned, for the latter making an opinion thereon, vis-a-vis, the blood stains occurring thereon, upon, apt comparison thereof, bearing compatibility, with, the blood group of the complainant, has, rather sequeled therefrom, the, apposite report borne in Ex.PW11/C, (I) wherein echoings occur, qua no unflinching opinion being formable qua, upon, the expert hence making the relevant comparison, his coming to a firm conclusion, that, the blood stains, occurring on the relevant item(s), as, sent to it, hence bearing compatibility(ies) with the blood group, of, the victim. Consequently the afore report of the FSL concerned, also does not, sustain the charge against the accused. 14. In net shell this Court, forms a conclusion, that, the appreciation of evidence on record by the learned trial court hence suffering from a gross perversity, thereupon, this Court is of the opinion that the verdict of conviction, recorded by the learned trial Court against the accused, being amenable for interference. 15. 14. In net shell this Court, forms a conclusion, that, the appreciation of evidence on record by the learned trial court hence suffering from a gross perversity, thereupon, this Court is of the opinion that the verdict of conviction, recorded by the learned trial Court against the accused, being amenable for interference. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, 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 trial court, hence, also suffers from gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 16. Consequently, the instant appeal is allowed, and, the judgment impugned before this Court is set aside. In sequel, the accused are acquitted of the charged offences. Fine amount, if deposited, be refunded to the accused. Personal, and, surety bonds stand discharged. All pending applications also stand disposed of. Records be sent back forthwith.