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2019 DIGILAW 516 (HP)

Partap Singh v. State Of H P

2019-04-30

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The present appeals arise, from a common thereto judgment, rendered by the learned Sessions Judge, Kinnaur, Sessions Division, at Rampur Bushahr, H.P., upon Session trial No. 28 of 2004, decided on 28.5.2008, hence both are decided under a common verdict. 2 Criminal appeal bearing No. 451 of 2008, stands directed by the convict, against, the judgment rendered by the learned Sessions Judge, Kinnaur Sessions Division, at Rampur Bushehr, (i) whereunder, he returned findings of conviction, upon, the appellant/convict, and sentenced him to pay a fine of Rs. 1,000/-, for, an offence constituted under Section 353, read with Section 34 IPC (ii) and, it further sentenced him to undergo simple imprisonment, till rising, of the Court, and, to pay a fine of Rs. 5000/-, for, commission of an offence constituted under Section 325 IPC, (iii) and in default of payment of fine, for an offence under Section 353 read with Section 34 IPC, the appellant was further sentenced to undergo simple imprisonment, for one month (iv) and, in default of payment of fine, for an offence under Section 325 IPC, the appellant was further sentenced to undergo simple imprisonment, for three months, (v) whereas, criminal appeal bearing No. 487 of 2008, stands directed by the state of H.P., against the afore decision, rendered by the learned Sessions Judge, Kinnaur at Rampur Bushehr, wherethrough, it seeks enhancement of the aforesaid sentence(s), imposed upon the convicts. 2. The facts relevant to decide the instant case are that on 2.1.2004, Sh. Amar Singh complainant was deputed as a conductor and Sh. Bhim Singh as a driver on HRTC bus No. HP-31-1546 on SundernagarDurah route and the bus after its journey from Sundernagar reached at Durah in Ani at 5:30 p.m. The complainant along with driver Bhim Singh were taking food in the Dhaba of Devi Ram at about 6:40 p.m., and at that time three boys identified as accused, entered and commanded the complainant as to how he had charged Rs. 4/- as fare in lieu of Rs. 3/- for NitharJalori journey. On insistence of the complainant that the fare was charged correctly, the accused beat him. On intervention of Sh. Bhim Singh driver, the accused Partap Singh gave him fists and kicks blows and complainant also noticed knife in his hand. Accused Rakesh and Om Prakash also gave beatings to the complainant with dandas, kicks and fists. 3/- for NitharJalori journey. On insistence of the complainant that the fare was charged correctly, the accused beat him. On intervention of Sh. Bhim Singh driver, the accused Partap Singh gave him fists and kicks blows and complainant also noticed knife in his hand. Accused Rakesh and Om Prakash also gave beatings to the complainant with dandas, kicks and fists. Bhim Singh driver suffered injury on face, fracture of jaw and dislocation of teeth. The complainant and Bhim Singh were rescued by Sh. Devi Ram and his son Yash Pal from the accused. The complainant was taken to C.H.C. Nirmand in a private van. On these facts, the complainant lodged FIR at Police Station, Nirmand on the same night at 12:45 a.m. All the codal formalities were completed and the challan was prepared. 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court concerned. 4. The accused/respondents were charged by the learned trial Court, for, theirs committing offence(s) punishable under Sections 452, 353, 332 and 333 read with Section 34 IPC. In proof of the charge, the prosecution examined eleven witnesses. On conclusion of recording of prosecution evidence, the statements of the accused/respondents, under, Section 313 of the Code of Criminal Procedure, were, recorded by the trial Court, wherein, the accused claimed innocence and pleaded false implication in the case. However, they did not lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction, hence, against the accused/appellant herein. 6. The appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned counsel appearing for the 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 conviction. 7. 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 conviction. 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 any interference, rather theirs meriting vindication, whereas, the State seeks enhancement, of, the sentence(s), imposed upon the convict, by the learned trial Court. 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 learned trial Judge, imputed credence, to the deposition(s) of PW-1, one Amar Singh, employed as a Conductor in the bus concerned, and, also vis--vis, the deposition of the victim, who stepped into the witness box, as PW-10, (a) and upon, his conjoining the afore testification(s), rendered by the afore witnesses'', with the, deposition(s) rendered by PW-8, who, in his testification, rendered proof, vis--vis, Ext. PW8/A, wherein stands enumerated, the hereinafter recorded injuries, found occurring on the person of the victim: i. History of alleged beating. ii. Severe bleeding (clots below and around and inside nose, also mouth; iii) Fracture of lower jaw towards left of medium line. iv) Left tempro mandibular joint, seems dislocated. v) Swelling face around nose with severe tenderness and pain. vi) Person is unable to speak clear swallow and spit, nor can open mouth; vii) Left foot is swollen, tender and painful walks as lame. viii) After initial treatment patien is being referred to IGMC Shimla for further treatment" and vide discharge slip, Ext. PW6/A, the hereinafter recorded injuries are enumerated: i) Fracture right angle of mandible (right side of lower jaw) ii) Fracture left parasymphysis (body or mandible) area of lower jaw bone between chin and left limit of lower jaw. besides, with his deposing qua the injuries, borne in MLC, Ext. PW8/B, being a sequel of knife Ext. PW6/A, the hereinafter recorded injuries are enumerated: i) Fracture right angle of mandible (right side of lower jaw) ii) Fracture left parasymphysis (body or mandible) area of lower jaw bone between chin and left limit of lower jaw. besides, with his deposing qua the injuries, borne in MLC, Ext. PW8/B, being a sequel of knife Ext. P-1, being used from the handle side, upon the victims'' person, and, a) importantly, with his rather dispelling, the, suggestion(s) put to him, by the learned defence counsel, qua the injuries enumerated, in the apposite MLC, being not causable by fall, b) AND conspicuously, with his, in contemporaneity, vis--vis, his rendering the afore deposition, hence being shown Ext. PW8/B, (c) thereupon he concluded, that the prosecution rendering efficacious proof, vis--vis, the charge framed against the accused. However, for the reasons to be assigned hereinafter, the afore dependence(s) by the learned trial Judge, in his hence recording an order of conviction, upon the accused, and, his imposing the afore consequent therewith sentence(s) upon him, is infirm, given, d) though, PW1 and PW-10, both evidently being unaware of the identities of each of the accused, yet theirs naming, the accused, being, a, sequel of one Yash Pal, and, one Devi Ram, unfolding to both, their respective names. Consequently, the factum of the afore unfoldments, vis--vis, the victims by PW-1, and by PW-10, was also enjoined to be cogently proven, hence by the prosecution. However, a reading of the testification, occurring in the cross-examination of PW-1, unveils imminent dis-concurrence, interse therewith, vis--vis, his previous statement recorded, under Section 161 Cr.PC, and, as borne in Ext. PW8/A, (e) improvement(s) whereof, is, comprised, in his testifying, qua Ext. PW8/A, rather making vivid disclosures, qua the afore Yash Pal and one Devi Ram, hence revealing to him, the, names of the accused persons, however, upon his being confronted with his previous statement, borne in Ext. PW8/A, (e) improvement(s) whereof, is, comprised, in his testifying, qua Ext. PW8/A, rather making vivid disclosures, qua the afore Yash Pal and one Devi Ram, hence revealing to him, the, names of the accused persons, however, upon his being confronted with his previous statement, borne in Ext. PW8/A, the afore rendered disclosures rather remaining unechoed, therein, c) thereupon it stands firmly concluded qua, PW-1, hence improving or embellishing, upon his previous statement, recorded in writing, conspicuously, vis--vis, the afore Yash Pal, and, Devi Ram, making dis-closures, to him, vis--vis, the names of the accused, d) corollary whereof being qua with PW-1 rather being previously unaware of the identity(s) of each of the accused, (e) thereupon, hence the afore gross improvements, and, embellishments, existing interse, his testification(s), vis--vis, his previously recorded statement in writing, obviously work(s) against the prosecution, (f) and, concomitantly renders open an inference, qua with both PW-1, and, PW-10, being previously unaware of the identities, of the accused, thereupon, theirs rather being awakened, vis--vis, the identities of the accused, only by the afore Yash Pal, and, Babu Ram , and, thereafter, their naming hence the afore accused, in the FIR, rather being naturally incredible, (g) and also thereafter, theirs identifying the accused, in Court, being gross-mis-adventures, of both PW-1, and, of PW-2, and, hence the prosecution, abysmally failing to establish, the, participation in the relevant incident, of, any of the accused. 10. The recovery of knife, borne in Ext. P-1, remained un-effectuated by the Investigating Officer concerned, at the instance of the accused, rather its recovery stood effectuated under Ext. PW1/B, hence at the instance of one Devi Ram, whereon rather exists purported signatures of one Mohan Lal, and, of Devi Ram. However, Devi Ram, who handed over Ext. P-1, to the Investigating Officer concerned, and, in sequel whereof, Ext. PW1/B stood prepared, during, the course of his rendering his testification, has not, only belied the factum, of, participation of the accused in the relevant incident, rather has also denied his making any previous statement before the Investigating Officer concerned, (i) AND even, upon his being declared hostile, whereafter, he was subjected to a scathing cross-examination, by the learned APP, he proceeded to also deny, the occurrence, of, his signatures upon Ext. PW8/A, (ii) and, rather in ordeal, of his cross-examination, as conducted by the learned defence counsel, he made echoing(s) qua the accused, not being, armed with any dandas or knife, (iii) wherefrom a momentous inference is drawable, qua the prosecution omitting, to hence unfailingly establish the identity of the accused, or concomitantly, their participation in the relevant incident. 11. Preponderantly, also with the other witnesses to Ext. PW1/B, also, denying, the, occurrence, of his signatures thereon, and, with despite, the afore conjoint denials, being made, by one Devi Ram, and by PW Mohan Lal, (i) the prosecution yet failing to, after collecting the specimen and admitted signatures of Devi Ram, and, of, Mohan Lal, hence send them along with the disputed signatures, of the afore existing, on, Ext. PW1/B, to the handwriting expert concerned, (ii) thereupon, it is to be concluded qua Ext. PW1/B being fictitiously drawn, and, recovery of knife therethrough, at the instance of Devi Ram, being both tenuous, and, also lacking in tenacity. 11. 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 and the analysis of the material on record by the learned trial Court, suffers, from a perversity or absurdity of mis-appreciation and nonappreciation of evidence on record. 12. 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. All pending application(s), if any, are also disposed of. Cr. Appeal No. 487 of 2008 In view of the findings recorded upon Cr. Appeal No. 451 of 2008, the instant appeal is dismissed as infructuous. All pending application(s), if any, are also disposed of.