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Himachal Pradesh High Court · body

2019 DIGILAW 1027 (HP)

Harbans Lal v. State Of H. P.

2019-07-25

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant revision petition, stands, directed by the accused/convict, against, the judgment rendered by the learned Additional Sessions Judge (Fast Track Court), Kangra, at Dharamshala, in criminal RBT Appeal No. 4-d/05/2003, wherethrough he affirmed the judgment, rendered on 27.5.2003/28.5.2003, by the learned Judicial Magistrate 1st Class, (I), Dharamshala, in case No. 108-II/02, whereupon, the latter returned findings of conviction, against, the accused/convict qua charges framed, under Section 326 IPC, and, consequently sentenced him, to, undergo six months simple imprisonment, and, to pay a fine of Rs. 15,000/-, and in default, was sentenced, to undergo simple imprisonment, for, one month. 2. The facts relevant to decide the instant case are that on 25.10.2002 at about 10:30 p.m. at village Haler, Police Station, Shahpur, complainant Chuni Lal was present in his house alongwith his sons Ravinder, Sunil Kumar and other family members. In the meantime, his nephew accused/appellant Harbans Lal came in the state of intoxication and asked the complainant why they were making noise. Upon this, son of Chuni Lal, Ravinder Kumar went to the Court-yard and asked the accused to go back. Consequently, accused went to his house and came back with darat (sickle) in his hand and gave its blow to Ravinder Kumar on his right hand. Ravinder Kumar raised alarm after sustaining injuries. Blood started oozing out of the injury. Thereafter, accused fled away from the spot. The occurrence as reported to the Police and initially Rapat was lodged. Injured Ravinder was medically examined and his MLC revealed that he has sustained grievous injury having been caused by sharp weapon. In the light of said medical opinion, the relevant FIR was registered. After carrying out the necessary investigation, the challan was prepared and presented in the Court. The accused was produced to face the trial. The learned trial Court vide impugned judgment convicted and sentenced the accused/appellant under Section 326 IPC. 3. XXX XXX XXX 4. The accused, was charged, by the learned trial Court, for his, committing offence(s) punishable, under Section 326 IPC. In proof of the charge, the prosecution examined 11 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, and, thereafter examined two defence witnesses. 5. In proof of the charge, the prosecution examined 11 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, and, thereafter examined two defence witnesses. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. The learned first appellate Court dismissed the appeal, filed by the convict, and rather affirmed the judgment rendered by the trial Court. 6. The accused/appellant is aggrieved by the concurrently recorded judgment of conviction, by both the learned Courts below. The learned Counsel appearing for the accused/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 the 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 convict, with, the user of Ext.P-1, recovered through memo Ext. PW9/A, signatured by the accused, and, witnesses thereto, one Piar Singh and one Des Raj, hence is alleged to inflict, the, relevant injuries, upon, the victim, one Ravinder Kumar. The injuries, inflicted by the convict, upon, the afore victim, are borne in Ext.PW1/A, authored by PW-1. During the course of his examination-in-chief, PW-1, rendered echoing(s), qua the injuries, occurring in Ext.PW1/A, being causable, upon, the victim rather by user, of, Ext. P-2, exhibit whereof stood shown to him, during, the afore course, of, his rendering his deposition. The injuries, inflicted by the convict, upon, the afore victim, are borne in Ext.PW1/A, authored by PW-1. During the course of his examination-in-chief, PW-1, rendered echoing(s), qua the injuries, occurring in Ext.PW1/A, being causable, upon, the victim rather by user, of, Ext. P-2, exhibit whereof stood shown to him, during, the afore course, of, his rendering his deposition. Since, the victim, in his examination-in-chief, rendered, a, testification, hence corroborating his earlier version, recorded in writing, (i) thereupon, and, when his testification, stood corroborated, by PW-3, his father (ii) and, with the deposition(s), of, each of the afore witnesses, being free from any stains, of, any interse contradictions, comprised in their deposition(s), embodied, in, their respective examinations-in-chief, vis-a-vis, their respective cross-examinations. Also, when their respective deposition(s), are, free, from any taint of any interse contradictions, and, also with in corroboration(s) thereto, hence testimony of the doctor, who, stepped into witness box, as PW-1, proves, the user of Ext. P-2, upon, the person of the victim, (iii) thereupon it is contended that the impugned verdict, recorded by both the learned Courts below, rather being not interferable, by this Court, in the exercise of its revisional jurisdiction. However, for the reasons to be assigned hereinafter, despite, the afore taints, not existing, in the respective testification(s), of PW-2, and, of PW-3, (iv) this Court, is rather coaxed, to make an inference, qua both PW-2, and of PW-3, hence rendering interested versions, qua the occurrence, as PW-2, in his cross-examination, has made bespeaking(s), qua, at the relevant time, qua upon his making shrieks, and, cries, hence, one Veena Devi and Prakash Chand, rather arriving at the relevant site of occurrence, and despite the afore, being enjoined to be cited as witness, hence by the prosecution, they were neither cited nor stepped into witness box, whereas only, upon, the afore being cited, they may have unearthed the truth, vis-a-vis, the relevant occurrence. 10. The further effect of theirs, being omitted, to be cited as prosecution witnesses, rather engenders, an inference, qua hence the prosecution, striving to, smother the truth of the occurrence, and, the corollary thereof, is qua this Court, being constrained, not to accept a smothered, and, suppressed version qua the relevant incident. 10. The further effect of theirs, being omitted, to be cited as prosecution witnesses, rather engenders, an inference, qua hence the prosecution, striving to, smother the truth of the occurrence, and, the corollary thereof, is qua this Court, being constrained, not to accept a smothered, and, suppressed version qua the relevant incident. PW-3 also, in his cross-examination, has made, hence echoing(s), qua after the completion, of, the occurrence, his lifting the body, of, PW-2, to the house of one Milkhi Ram, and, thereafter even, the, afore Milkhi Ram was enjoined to be cited, as, a prosecution witness, for his rendering, an, unequivocal version qua the occurrence, (i) however, the afore Milkhi Ram stood neither cited, as, a prosecution witness nor obviously he stepped into witness box, (ii) whereas, upon, his being cited as a prosecution witness, he may have made, truthful revelation(s), vis-a-vis, the genesis of the prosecution case. Contrarily, hence this Court is constrained to garner an inference, qua, the prosecution, depending upon suppressed, camouflaged, and, doctored version(s), vis-a-vis, the relevant occurrence, obviously, thereupon, no reliance, can be placed, by this Court. 11. Be that as it may, the another purported eye witness to the occurrence, also cannot be construed to render a truthful version, qua therewith, as a) his statement stood belatedly recorded, (b) his improving upon his earlier statement recorded in writing, comprised in his making, an echoing, in his examination-in-chief, vis-a-vis, the accused/convict, striking, a, sickle blow at him, (c) whereas, with the afore echoing remaining un-articulated, in his previous statement recorded in writing, hence engulfs his testimony, with a stain, of, improvement. Even otherwise, with his being an interested witness, and, his being closely related, to PW-2, and to PW-3, and, when no independent witnesses, vis-a-vis, the relevant occurrence, despite, theirs' being evidently available rather remained un-associated by the Investigating Officer, (d) and, wherefrom this Court is constrained, to draw, a conclusion, vis-a-vis, the prosecution, presenting rather a doctored, camouflaged, and, suppressed version(s), vis-a-vis, the relevant penal occurrence, hence also constraining this Court, not to proceed, to, mete any credence, vis-a-vis, the testification of PW-4. 12. Even though, a perusal of Ext. PW9/A unveils, qua Ext. P-1, being presented before the Investigating Officer, in the Police station, by the accused/convict. However, Ext. P-1, comprises, no admissible incriminatory piece of evidence, given any confession qua with user thereof, the accused inflicting injuries, reflected in Ext. 12. Even though, a perusal of Ext. PW9/A unveils, qua Ext. P-1, being presented before the Investigating Officer, in the Police station, by the accused/convict. However, Ext. P-1, comprises, no admissible incriminatory piece of evidence, given any confession qua with user thereof, the accused inflicting injuries, reflected in Ext. PW1/A, upon, the person(s), of, the victim, is, barred under Section 25, of, the Indian Evidence Act, provisions whereof are extracted hereinafter: "25. Confession to police officer not to be proved No confession made to a police officer, shall be proved as against a person accused of any offence. (a) and when for proving, the, afore confessional factum, to, hence fall within the domain, of, validation, it was enjoined, to be proven, to also fall, hence within the ambit of Section 27, of, the Indian Evidence Act, provisions whereof stand extracted hereinafter: "27 How much of information received from accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." (i) where within rather the afore apposite excepting provisions, vis-a-vis, the provisions, of, Section 25, of, the Indian Evidence Act, stand borne, (ii) and theirs' make a graphic, and, clear echoing(s), qua the accused, after making the purported relevant confession, his ensuring apt recovery(s), at his instance, and, vis-a-vis, the Investigating Officer, qua the relevant weapon of offence, (ii) contrarily when Ext. PW9/A, is, not a composite disclosure statement, whereafter the weapon of offence, as stood concealed, by the accused/convict, hence stood recovered rather in sequel thereto, (iii) also when the accused stood arrested, only on 3.11.2002, and, with the preparation of Ext. PW9A, occurring on 3.11.2002, (iv) thereupon also when at the time, of, preparation, of, Ext. PW9/A, the accused/convict, was not, in police custody, nor has made any confessional statement, nor could hence lead, the, Investigating Officer concerned, vis-a-vis, the place, of, his keeping and, concealing Ext. P-1, whereupon also rather Ext. PW9/A may assume validity. Contrarily, when the drawing, of, Ext. PW9/A, the accused/convict, was not, in police custody, nor has made any confessional statement, nor could hence lead, the, Investigating Officer concerned, vis-a-vis, the place, of, his keeping and, concealing Ext. P-1, whereupon also rather Ext. PW9/A may assume validity. Contrarily, when the drawing, of, Ext. PW9/A, has occurred rather at a stage whereat the accused, was not, in police custody, thereupon no probative vigor, can be assigned, vis-a-vis, it given it, being hit, by Section 25, of, the Indian Evidence Act, (v) and it also does not attract thereon, rather the excepting therewith mandate, as encapsulated, in, Section 27 of the Indian Evidence Act, (vi) as reiteratedly in contemporaneity, vis-a-vis, preparation, of Ext. PW9/A, hence the accused, was not in police custody, nor hence the prosecution can contend, that, the mandate, borne in Section 27, of, the Indian Evidence Act, hence begets any attraction or satiation. 13. Moreover, no opinion, stood rendered, by the FSL concerned, vis-a-vis, the blood stains occurring on the shirt, borne in Ext. P-2, bearing compatibility, with the blood group of the victim, thereupon, also Ext. P-2, does not form, any valid apt incriminatory evidence, against, the convict. 14. For the reasons which have been recorded hereinabove, this Court holds that both the learned Courts below, have 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, suffers, from a perversity or absurdity of mis-appreciation, and, non-appreciation of evidence on record. 15. The appeal is allowed. The impugned judgment is quashed and set aside. The accused is acquitted. Case property be destroyed after the expiry of the period of limitation, for filing an appeal. Fine amount, if deposited by the accused be forthwith refunded to him. Personal and surety bond(s) be forthwith discharged.