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2019 DIGILAW 675 (HP)

State of H. P. v. Basant Lal

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the State, against, the pronouncement made by the learned Addl. Judicial Magistrate, Court No.1, Mandi, H.P., upon, Criminal Case No. 7-1/ 2004/54-II/2004, whereunder, the accused/respondents herein hence stood acquitted. 2. Briefly, stated the facts of the case are that on 22.8.2003, at about 8 P.M., at place Shasan, Police Station Balh, Tehsil Sadar, District Mandi, H.P., both the accused in furtherance of their common intention have given beatings to Dharam Singh by pelting stones and by danda blows, and, by iron gramala, and, as such the complainant has received injuries on his person. On the information given by the complainant, FIR was registered against the accused in the Police Station concerned, and, the police carried out the relevant investigations in the case. 3. On conclusion of the investigations, 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/respondents herein stood charged, by the learned trial Court, for, theirs committing offences, punishable under Sections 323 and 324 read with Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording, of, the prosecution evidence, the statement (s) 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 acquittal in favour of the accused/ respondents herein. 6. The appellant herein/State, stands aggrieved, by the findings of acquittal, recorded, by the learned trial Court. The Additional Advocate General, has, concertedly and vigorously contended, qua the findings of acquittal, 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 acquittal warranting reversal 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 acquittal warranting reversal 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 counsel appearing for the respondents, has, with considerable force and vigour, contended qua the findings of acquittal, 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. Two purported eye witnesses to the occurrence, who respectively stepped into the witness box as PW-2 and PW-5, reneged from their previous statements recorded in writing, and, obviously failed to sustain the charge against the accused. The afore reneging of the afore witnesses, from, their previous statements, respectively recorded in writing, would not bestow any aura of validity, vis-a-vis, the verdict of acquittal recovered by the learned trial Court, unless, they in their respective cross-examinations, render echoings, rather sustaining the genesis of the prosecution case. The learned Additional Advocate General has made sinewed submission, before this Court, that with Ex.P-1, “Garmala”, being taken into possession under memo borne in Ex.PW5/A, and, both the afore witnesses thereto hence failing to contest their respective signatures, as, embodied therein, (I) thereupon, the factum of their reneging from their previous statements recorded in writing, rather being eclipsed. However, the afore submission is also frail, as, a perusal of Ex.PW5/A makes clear, and, candid unveilings qua it being not construable either to a validly drawn disclosure statement, not it being construable to be the apposite recovery memo, wherethrough recovery of Ex.P-1, was, made, rather subsequent thereto. Since, Ex.PW5/A constituted the purportedly potent incriminatory piece of evidence, and, when, for, the prosecution being foisted, to, on anvil thereof, hence, validly espouse that it constituted, also both admissible, and, relevant piece of evidence, hence, cast a dire statutory necessity, upon, the Investigating Officer, to, record the statutorily ordained disclosure statement, as, rendered by the accused, during the course of his taking his custodial interrogation, and, thereafter, the, recovery (ies) of the afore weapon of offence, made, under, a, validly drawn recovery memo (s), reiteratedly would foist it with incriminating potency. However, reiteratedly, Ex.PW5/A omits to unveil qua it either being readable, as, the apposite disclosure statement or as the apposite recovery memo, wherethrough, the accused, at his instance, hence ensured, the, recovery of Ex.P-1, by the Investigating Officer. In aftermath, when, for afore reasons, neither the apposite disclosure statement, as, made by the accused, nor when Ex.P-1 stood recovered subsequent thereto, validly drawn recovery memo, thereupon, the purported recovery memo borne in PW5/A, cannot be construed, to be any potent permissible/admissible material piece of evidence, against, the accused. Contrarily, it is discardable, and, as aptly done by the learned trial Court, and, on its anvil also no findings of conviction, can be returned, against the accused. 10. Even otherwise, the prosecution case is wholly dependent upon the testifications, rendered by PW-2, and, PW-5, the purported eye witnesses to the occurrence. As afore stated, both have turned hostile, (i) dehors their reneging from their previous statements recorded in writing, (ii) and, dehors the factum of theirs appending their respective signatures, upon, Ex.PW5/A, rather, when the probative tenacity, of, the latter exhibit, is, for the reasons aforestated, hence, concluded to be wholly enfeebled, the further factum which enfeebles, any dependence, vis-a-vis, the testifications rendered, by the afore ocular witnesses, (iii) is grooved in the factum given theirs rendering testifications, vis-a-vis, the prosecution case rather with visible intra se contradictions. The requisite contradictions, as, exists in their testifications, as, recorded on oath, (iv) stand comprised in the factum that, though, PW-2, has testified qua the accused being armed with dandas, whereas, in contradictions thereto, PW-5 testifies qua the accused rather inflicting by pelting stones, hence, injuries, upon, the victim. Furthermore, PW-2 omits to ascribe specifically, vis-a-vis, accused Ghumbli Devi, any incriminatory role, of, hers hence inflicting danda blows upon the victim, whereas, in contradiction thereto, rather PW-2 ascribes, vis-a-vis, the afore Ghumli Devi, an incriminatory role of hers inflicting danda blows, upon, victim Dharam Singh. The afore contradiction, is further, falsified by PW-6 Dharam Singh, deposing that no blows with dandas being inflicted upon his person, nor the afore dandas being taken into possession by the Investigating Officer, during, the course of his holding, the investigations into the offences. The afore contradiction, is further, falsified by PW-6 Dharam Singh, deposing that no blows with dandas being inflicted upon his person, nor the afore dandas being taken into possession by the Investigating Officer, during, the course of his holding, the investigations into the offences. The sequel of the afore contradictions inter se the testifications of PW-2, PW-5 and, of the complainant, who stepped into the witness box, as PW-6, is, qua the presence at the relevant site of occurrence, hence, of both the purported ocular witnesses to the occurrence, namely, PW-2 and PW-5, being belied, (v) and, further the medical legal evidence also negating the user of Ex.P-1 i.e. garmala in its hence causing the injuries upon the persons of the victim, hence, the erectable therefrom inference, is, qua the entire genesis of the prosecution case rested, upon, the evidence of the afore witnesses, getting jettisoned, and, capsized. 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, hence, not suffering from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane evidence on record. 12. Consequently, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.