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Himachal Pradesh High Court · body

2020 DIGILAW 802 (HP)

Subhash Singh v. State of Himachal Pradesh

2020-11-04

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The appellant, one Subhash Singh, upon, becoming aggrieved, from his being convicted, for, charge(s) drawn under Section 302, and, under Section 326 of the Indian Penal Code, hence by the learned Additional Sessions Judge-I, Kangra at Dharamshala, District Kangra, H.P., through a verdict rendered, on 21.10.2016, upon, session case No. 17-D/VII/2014, has instituted thereagainst, the, instant appeal, before this Court. 2. In pursuance to his becoming convicted, for, the afore charges, framed under Section 302 of the Indian Penal Code, the accused became sentenced, to, undergo rigorous imprisonment for life, and also a sentence, of, fine borne in a sum of Rs. 10,000, became imposed upon him, vis- -vis, the afore charge(s) , and, he was also sentenced, to, undergo rigorous imprisonment, for five years, and, also became sentenced, to, pay a fine of Rs. 5,000/-, for, the offence punishable, under, Section 326 of the Indian Penal Code. In default(s) of payment(s) of fine amount(s), he became further sentenced to undergo rigorous imprisonment, for one year, vis- -vis, charges,drawn under, Section 302 of the Indian Penal Code, and, for rigorous imprisonment, extending upto six months, vis- -vis, charges framed under Section 326, of, the Indian Penal Code. Both the sentences were ordered to run concurrently. 3. The genesis, of, the prosecution case, becomes, embodied, in a statement, as, made by the informant, one Ramesh Chand, statement whereof, is, embodied in Ext. PW1/A, (i) wherein the informant, makes echoing(s), vis- -vis, the sister, of, the informant, one Krishna Devi, solemnizing, in the year 1999, a love marriage, with the convict. He further narrates therein, that, for a year, after both entering into a wedlock, theirs living in peace, and, harmony, however, after one year, of theirs solemnizing marriage, rather the convict, nursing suspicion about the chastity, of, the deceased, and, the afore suspicion engendering conflicts, amongst them. On 28.3.2014, he narrates that at about 8 p.m., the maternal uncle, of the deceased, making a telephonic intimation, to him, that on the previous night, both the deceased, and, the accused, making interse bickering(s), and that in the morning, of, 28.3.2014, the convict, making, a, fatal darat blow, on the head, of, the deceased, and, thereafter his fleeing. On 28.3.2014, he narrates that at about 8 p.m., the maternal uncle, of the deceased, making a telephonic intimation, to him, that on the previous night, both the deceased, and, the accused, making interse bickering(s), and that in the morning, of, 28.3.2014, the convict, making, a, fatal darat blow, on the head, of, the deceased, and, thereafter his fleeing. The afore incident, is, stated to be witnessed, by the sister, of, the convict, inasmuch as by one Sudesh Kumari, and, it is also mentioned therein, that during the course, of, the scuffle, which erupted interse the convict, and, the deceased Krishna Devi, the afore Sudesh Kumari, also sustaining injuries, on her person. In pursuance to the making, of, Ext. PW1/A, a formal FIR became registered with the Police station concerned, FIR whereof, becomes embodied in, Ext. PW15/A. 4. During the course, of, investigation(s), being made, by the Investigating Officer, the latter ensured, the, making(s), of, medical examination(s), of, the injuries meted upon Sudesh Kumari, hence by the convict, (a) and, the report prepared in pursuance thereof, is, embodied in Ext. PW3/A. Through memo drawn in Ext. PW4/A, darat, Ext. P-1, became recovered. In addition, through memo, drawn in Ext. PW4/B, blood stained soil, Ext. P-4, and, control sample, of, soil, Ext. P-5, became recovered. (i) In addition, through memo drawn in Ext. PW6/A, uncontrovertedly signed by the convict, and, by the marginal witnesses thereto, the T-shirt hence worn, at the relevant time by the convict, and, as borne, in Ext. P-3, became recovered. (ii) The blood sample, of, the deceased, became extracted, by PW-16, and, thereafter, he enclosed, it in a sealed bottle, borne in Ext. PA-8, and, the afore, also alongwith other items, depicted therein, inclusive, of, Ext. P-3, became sent under, a, road certificate, borne in, Ext. PW12/A, to the FSL concerned, and, the latter, in its report embodied in Ext. P-B, (ii) made an opinion, opinion whereof is extracted hereinafter, hence pronouncing, vis- -vis, all the items, carrying thereon, the blood group "A", belonging to deceased Krishna Devi. "1. Human blood of group "A" was detected in exhibit-1 (blood stained darat), exhibit-2 (blood stained soil and hair lifted from the spot, Exhibit-4, (blood stained boru/sack with hair lifted from the spot, exhibit-5, (T-shirt, Subash, Ext. "1. Human blood of group "A" was detected in exhibit-1 (blood stained darat), exhibit-2 (blood stained soil and hair lifted from the spot, Exhibit-4, (blood stained boru/sack with hair lifted from the spot, exhibit-5, (T-shirt, Subash, Ext. 7A (Salwar of Krishna Devi, Exhibit 7b (shirt Krishna Devi) exhbit7e (sweater of Krishna Devi, Exhibit 7d (shawl, Krishna Devi) exhibit-7e (underwear, Krishna Devi, Exhibit-8 (blood sample Krishna Devi, and Exhibit-9 (head hair sample Krishna Devi. 2. Blood was not detected in Exhibit-3 (control sample soil) 3. The hairs found in exhbit-1 (blood stained darat) exhibit-2, (blood stained soil and hairs lifted from the spot) exhibit-4, (blood stained boru sack with hairs lifted from the spot) exhibit-7e (sweater Krishna Devi) Exhibit-7d (Shawl Krishna Devi) and exhibit-9 (head hair sample, Krishna Devi) were identified as human head hairs, which were found similar with each other. 5. At the outset, the afore, scientific opinion, cannot be construed to be an infirmly made opinion, as, the learned Public Prosecutor, tendered the afore report, into evidence, and, thereafter, the defense did not seek the leave, of, the Court, to, examine the Assistant Director, who authored Ext. P-B, (a) omission whereof constrains this Court to infer, vis- -vis, conclusivity, being attracted, to, the afore made report, inasmuch as, the, afore inculpatory upsurging(s), borne therein, appertaining to the occurrence, of, blood stains, of, the deceased, upon, T-shirt worn, at the relevant time, rather by the accused, emphasizingly hence nailing, the charge, drawn against the accused. 6. The post-mortem report, embodied in Ext. PW16/D, assigns therein, the cause, of, demise, of, the deceased, to arise from hypovolmic shock, due to antemortem injuries, as become(s) narrated therein, injuries whereof, are extracted hereinafter: (i) Clean incised wou,d 15 cmx 5 c, extending from 3 cm below right angle of mandible upto nape of neck in the middle, cutting the right mastoid process of bone. Underlying vertebrae were visible. (ii) Clean incised wound 20 cmx3cmx1.5 cm extending from just lateral to left lateral canthus of eye up to left occipital process of skull bone cutting the underlying temporal and parietal bones, sharply with brain matter protruding out. (iii) Clean incised wound 5 cmx 2 cmx1 cm on leftl thumb cutting the head of proximal phalynx. (iv) 2 cm clean incised wound on right ear lobule cuttint it through and through. 7. The author, of, Ext. (iii) Clean incised wound 5 cmx 2 cmx1 cm on leftl thumb cutting the head of proximal phalynx. (iv) 2 cm clean incised wound on right ear lobule cuttint it through and through. 7. The author, of, Ext. PW16/A, upon stepping into witness box, as PW-16, during his examination-inchief, proves all the ante-mortem injuries, found to be occurring on the person, of, the deceased, hence put to autopsy. Darat, Ext. P-1, was shown to him, during the course, of, his examination-in-chief, and, he has assigned the cause, of, the injuries, noticed by him, to be occurring on the body, of, the deceased person, as, put to autopsy, inasmuch, as, their being causable with user(s) thereof. The eye witness to the occurrence, one Sudesh Kumari, upon, stepping into witness box, has, though during the course, of, her examination-inchief, reneged from her previous statement, recorded in writing, (a) and, hence, constraind the learned Public Prosecutor, to seek permission, of, the Court to declare her hostile, for thereafter, his becoming facilitated, to cross-examine her. Upon the afore permission, being granted by the Court, to the Public Prosecutor, the latter put her to an ordeal, of, a rigorous crossexamination, and therein also, she belied the content(s), of, her previously made statement in writing. However, she acquiesces, to, an affirmative suggestion, vis- -vis, hers' sustaining injuries, and, thereafter, hers proceeding to the house, of, her younger brother, one Sudarshan, and, both thereafter, alongwith her sisterin-law, taking her to Pathankot, for, treatment. She also proves the treatment summary, borne in Ext. PW3/A, and, also proves, the, makings, of, Ext. However, she acquiesces, to, an affirmative suggestion, vis- -vis, hers' sustaining injuries, and, thereafter, hers proceeding to the house, of, her younger brother, one Sudarshan, and, both thereafter, alongwith her sisterin-law, taking her to Pathankot, for, treatment. She also proves the treatment summary, borne in Ext. PW3/A, and, also proves, the, makings, of, Ext. PW3/B. Despite the afore eye witness to the occurrence, making the afore echoing(s), appertaining to the validity, of, the signing(s), of, the afore memos), and, also when the drawings, of, the afore memo(s), co-incides with the illfated occurrence, hence happening, (b) thereupon, it became incumbent upon the defense to elicit, from her affirmative echoing(s), and theirs' making loud articulation(s), vis- -vis, the injuries, embodied in the afore exhibits, being gained on her person, in a manner, other than, the one narrated in her previous statement recorded in writing, wherefrom, rather she resiled, (c) however, none, of, the afore suggestions, became meted to PW-3, during the course, of, hers being subjected to cross-examination, by the learned defence counsel, after the public prosecutor, completing his cross-examination, upon her, after hers' becoming declared hostile, upon hers' reneging, from her previous statement, recorded in writing. The effects, of, omissions thereof, is, vis- -vis, the afore Sudesh Kumari, being an eye witness to the occurrence, and, the factum, of, hers' resiling from her previous statement, recorded in writing, becoming sparked, only on account, of, the convict, evidently being her brother, (d) and, whereas, with her not making any bespeaking(s), in explication, of, the proven injuries, occurring on her person, and, as become borne, in Ext. PW3/A, thereupon, rather rendering insignificant, the, factum of, hers' resiling from her previous statement, recorded in writing, (e) rather she is to be concluded to gain injuries, during the course, of, the scuffle, which erupted interse the accused, and, the deceased, (f) and, also thereupon, she is to be concluded to be an ocular witness, to the occurrence, dehors, hers resiling from her previous statement, recorded in writing. Moreover, since, given the gravity, of, the injures, sustained by the afore Sudesh Kumari, the accused also became charged, and, besides became convicted, for, the offence, punishable, under Section 326,of, the Indian Penal Code, and, with no endeavour, being made by the defense, to scuttle the efficacy, of, drawing(s), of, the afore charge, nor any cogent evidence, being adduced by the defense, for, impugning the validity, of, drawing(s), of, Ext. PW3/A and Ext. PW3/B, (g) emphatically, when the drawing(s), of, the afore memo(s), co-incides, with the ill fated occurrence, thereupon, reiteratedly, the afore omissions, coax this Court, to, conclude, vis- -vis, all the afore drawn charges, becoming thereupon(s) hence proven, by the prosecution. 8. Be that as it may, even though, the recovery,of, the Darat, Ext. P-1, was not made, at the instance, of, the accused, rather its recovery became effectuated, from near the earthen fire place, in the house, of the accused, through memo, borne in Ext. PW4/A, and, wherein the signatures, of, the accused are not occurring, (i) and, also when hence, the effectuation, of, recovery(ies), of, darat, Ext. P-1, and also its concomitant user, by the accused, in his inflicting, the fatal head injuries, upon the person, of, the deceased, becomes beclouded, with an aura, of, skepticism, yet the afore clouds, of, skepticism, (ii) enveloping, the, drawing(s), of Ext. PW3/A, become obliterated, upon,(a) PW-16, upon stepping into witness box, proving his authoring the post-mortem report, embodied in Ext. PW16/D, and, obviously, also his proving, the factum, of, occurrence, of, head injuries, as became noticed by him, upon his making an, autopsy, upon the body, of, the deceased, besides his proving, vis- -vis, theirs being causable with the user, of, darat, Ext. P-1. (iii) The defense counsel, upon the Darat, Ext. P-1 being produced in Court, not challenging the afore echoing, made by PW-16, in his examination-in-chief, rather, it causing, a, minimal challenge, vis- -vis, the afore made echoing, by PW-16, inasmuch, as, non-appearance, of blood, of, the deceased, on Ext. P-1. (iii) The defense counsel, upon the Darat, Ext. P-1 being produced in Court, not challenging the afore echoing, made by PW-16, in his examination-in-chief, rather, it causing, a, minimal challenge, vis- -vis, the afore made echoing, by PW-16, inasmuch, as, non-appearance, of blood, of, the deceased, on Ext. P-1, in contemporaniety, vis- -vis, its becoming produced, in Court, nor his meteing any suggestion, vis- -vis, the head injuries, occurring on the body, of, the deceased, being causable, through a mode alternate to the user, of, Darat, thereon(s) (iv) thereupon, an inference, becomes garnered, vis- -vis, the defense, acquiescing, qua the accused, causing, the, fatal apposite darat blows, upon the head, of, the deceased, dehors, in-efficacy, of, drawing(s), of, memo, borne in Ext. PW4/A, inasmuch, it not carrying thereon, the signatures, of, the accused. Tritely, any inefficacy, hence appertaining, to, drawing, of, memo, borne in memo, Ext. PW4/A, wherethrough, darat, Ext. P-1, became recovered, becomes eclipsed from all the afore proven inculpatory links, hence connecting the accused, in the commission, of, the charged offence(s). 9. Be that as it may, even if assumingly any exculpatory latitude, appertaining, to, or arising from, the afore, does work the apposite benefit, of, doubt, towards the accused, inasmuch as, it becoming aroused, from the afore purported in-efficacy, in the drawing, of, Ext. PW4/A, (i) wherethrough vis- -vis, Darat, Ext. P-1, became recovered, hence, by the Investigating Officer, (ii) yet, all the exculpatory effects, thereof become effaced from the recovery, of, the Tshirt, worn, at the relevant time, by the accused, rather becoming validly effectuated at the latters' instance, through memo borne, in, Ext. PW6/A, emphatically when thereon(s), the unchallenged signatures, of, the accused occur and, reiteratedly also when its valid drawing(s),becomes proven, by the marginal witnesses thereof, (iii) and, with the Ext. P-3 also becoming mentioned therein, (iv), and, besides from, or, though PW-16, in his examination-in-chief, making an unchallenged echoing, vis- -vis, his collecting, the blood samples, of, the deceased, in a sealed bottle, and, the afore sealed bottle, being borne in Ext. PA-8, and, besides when the afore became sent, alongwith other incriminatory items, to the FSL concerned, through road certificate, borne in Ext. PW 12/A, , and with the FSL concerned, in its uncontested report, borne in Ext. P-B, making an echoing, vis- -vis, its containing blood stains, of, group "A', blood group whereof, belongs to the deceased. PA-8, and, besides when the afore became sent, alongwith other incriminatory items, to the FSL concerned, through road certificate, borne in Ext. PW 12/A, , and with the FSL concerned, in its uncontested report, borne in Ext. P-B, making an echoing, vis- -vis, its containing blood stains, of, group "A', blood group whereof, belongs to the deceased. (b) Conspicuously, hence when the recovery(s), of, Ext. P-3 becomes effectuated, through, a, validly proven memo, comprised in Ext. PW6/A, and, thereupon, an inevitable conclusion emanates, vis- vis, the afore unchallenged echoing, borne in the report, of, the FSL, embodied in Ext. PW12/A, comprising, the most potent, and, proven inculpatory evidentiary fact against the accused. 10. Be that as it may, the completest sanctity, is, enjoined to be meted to the afore made report, of, the FSL, and appertaining, to, the existence, of, blood, of, the deceased, hence upon the T-shirt, as, worn, at the relevant time, by the accused, (i) as, the afore T-shirt, became carried in a sealed cloth parcel, from, the Mallkhana concerned to the FSL concerned, in a sealed, and, untampered condition, and thereafter, it became returned, in the same condition, to the Mallkhana concerned, and, whereafter, it became produced, in an unchanged/untampered, hence sealed condition, before the learned trial Court. 11. In summa, for the reasons as become assigned hereinabove, this Court holds that the learned trial Court, has appraised the entire evidence, on record, in a wholesome and harmonious manner, and, also the analysis thereof, by the learned trial Court, hence, does not, suffer, from, any perversity or absurdity, of, any mis-appreciation, and, or nonappreciation, of, germane to the charge, hence evidence, on record. 12. There is no merit in the instant appeal, and, the same is dismissed. The impugned judgment is maintained and affirmed. Records be sent back forthwith.