Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 401 (HP)

State Of H P v. Pawan Kumar

2021-07-14

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - Accused Pawan Kumar, faced trial for charges drawn against him under Sections 341, 324, 323, 504, 506, and, under Section 427 of the IPC. The learned trial Court, through, its verdict made on 22.08.2008, upon, Criminal Case No. 57-II-2007, recorded an order of conviction, upon, the accused for the afore charged offences, excepting the charge framed against him under Section 323 of the IPC. In sequel, to the afore convictions, becoming made against the accused, under, the afore penal provisions, he became sentenced to undergo rigorous imprisonment, upto a term of two years, and, also became imposed a fine of Rs.2,000/- for the commission of an offence punishable under Section 324 of the IPC, and, further in default of payment of fine amount he was sentenced to undergo simple imprisonment of three months. With respect to the offence punishable under Section 341 of the IPC, he became sentenced to undergo simple imprisonment for a term of one month. For charges drawn against him under Section 504 of the IPC, he became sentenced to undergo rigorous imprisonment for a period of six months. With respect to the charges drawn under section 506 of the IPC, he came sentenced to undergo simple imprisonment for six months, and, for charges drawn against him under Section 427 of the IPC, he became sentenced to undergo simple imprisonment, for a period of six months. All the afore sentences were ordered to run concurrently. 2. The aggrieved convict preferred an appeal before the learned Sessions Judge concerned, hence against the order of conviction made against him by the learned trial Court, upon, case No. 57-II-2007, and, also against the consequent therewith order of sentence, and, fine imposed upon him. The learned Sessions Judge concerned, while making a decision, on 11.11.2008, upon, Civil Appeal No. 66 of 2008, set aside, and, annulled the judgment of the learned trial Court. 3. The State of H.P. is aggrieved from the judgment of the learned Sessions Judge concerned, hence drawn on 11.11.2008, upon, Criminal Appeal No. 66 of 2008, wherethrough, the convict's appeal was accepted, and, the order of conviction and consequent therewith imposed sentences, upon, the convict became annulled and aside. 3. Briefly stated the facts of the case are that complainant Pawan Kumar, PW-5, lodged FIR Ex.PW2/A, at police station Barsar, on June 6, 2007, to the effect that he is a Contractor. 3. Briefly stated the facts of the case are that complainant Pawan Kumar, PW-5, lodged FIR Ex.PW2/A, at police station Barsar, on June 6, 2007, to the effect that he is a Contractor. On that day, he was going to Bijhar from Mehre alongwith Ramesh Chand. At about 7.00 p.m., when they reached at place "Kuan Wala Chowk", accused was present there and intercepted them. He proclaimed that they allege against him that he used to sell liquor and they were thereby defaming him. Then he started abusing both of them. When they asked him not to abuse, then the accused assaulted him and Ramesh Chand saved the complainant. Then, the complainant made a telephonic call to Yashpal, PW-2, who also came to the spot. The accused started his vehicle and hit the vehicle No. HP-21A-2180 of Ramesh Chand with his Vehicle No. CH-03K-9333 and damaged the back light of right side. When the complainant and Ramesh Chand left for their house, accused came there with sword/kripan, ExP1 and struck a blow therewith on the right arm of the complainant and blood started oozing out therefrom. Then Ramesh Chand and Yashpal Singh etc., rescued him. The accused threatened him to kill in future. During the course of investigations carried in the offences, the police completed all the codal formalities. 4. Though, the ocular witnesses to the occurrence, do consistently depose, with respect to the genesis of the prosecution case, as, embodied in FIR borne in Ex.PW2/A. Moreover, the learned trial Court upon making the apt wholesome reading of the statements, of the ocular witnesses to the occurrence, as, recorded before him, made an order of conviction, upon the accused. However, as aforestated, its verdict of conviction, and, consequent therewith sentences imposed upon the accused, became annulled by the learned Sessions Judge concerned. 5. Even though, the ocular witnesses to the relevant occurrence, do render credible testifications, with respect to the genesis of the prosecution case, especially when they render their respective testifications bereft of any material improvements, or embellishments, vis-a-vis, their previously recorded statements in writing, and/or, when they also render their testification(s) without any inter se contradictions. Therefore, even though prima facie their credible ocular testifications with respect to the genesis of the prosecution case are not amenable to be discounted. 6. Therefore, even though prima facie their credible ocular testifications with respect to the genesis of the prosecution case are not amenable to be discounted. 6. Be that as it may, for the reasons to be assigned hereinafter, the credible ocular account(s) rendered, by the ocular witnesses with respect to the genesis of the prosecution case, are, amenable to be discounted. Even though, the prosecution witnesses who made an ocular account with respect to the prosecution case, did excepting PW-3, make unanimous communication(s) in their respective testifications, that the relevant assault as made by the accused, upon, the victim, was with a Kirpan, whereas, PW-3 deposed that the relevant assault, upon, the victim was made by the accused with user of sword. Therefore, for respectively discarding the testimony of PW-3, and for believing the testimonies of other ocular witnesses to the occurrence, who in unison deposed, that the alleged weapon of offence was a Kripan, the prosecution was enjoined to bring inter se conformity inter se the recitals carried in the recovery memo borne in Ex.PW2/B, hence with the testifications made by the ocular witnesses, to the occurrence. In case, the afore inter se conformity exists, thereupon, this Court would become constrained, to annul and set aside the verdict of acquittal pronounced by the learned Sessions Judge concerned, upon, Criminal Appeal No. 66 of 2008. Conversely, in case, there is any rife inter se dichotomy or inter se contradiction(s) inter se the recitals carried in Ex.PW2/B, rather with the testifications of the ocular witnesses, this Court would lean towards maintaining, and, affirming the impugned verdict of acquittal pronounced by the learned Sessions Judge, upon, Criminal Appeal No. 66 of 2008. A deep reading of the recitals carried in Ex.PW2/B, disclose(s) that the testification of all ocular witnesses, excepting PW-3, rather bear conformity or/and consistency with the recitals carried in Ex.PW2/B, wherethrough, Kripan became recovered. However, the recitals carried in Ex.PW2/B are not in conformity with the testification of PW-3, who however has stated that the relevant weapon of offence was a sword. The impact thereof would hence be gauged hereafter. Therefore, prima facie this Court may proceed to not take a view contrary to the view as taken in the impugned judgment. 7. However, the recitals carried in Ex.PW2/B are not in conformity with the testification of PW-3, who however has stated that the relevant weapon of offence was a sword. The impact thereof would hence be gauged hereafter. Therefore, prima facie this Court may proceed to not take a view contrary to the view as taken in the impugned judgment. 7. However, the most striking reason, for belying the testifications of the ocular witnesses, to the occurrence, and, also for negating the recitals carried in Ex.PW2/B, wherethrough "Kripan" Ex.P-1 is disclosed to be recovered or it became produced in the police station by the accused, is comprised in (a) the Doctor, who examined the victim, and, prepared the MLC, and, who during the course of recording, of his examination-in-chief, while stepping into the witness box, as PW-1, though proved MLC borne in Ex.PW1/A, to be authored by him, and, also proved the injuries carried therein, which become extracted hereinafter:- "1. Lacerated wound with regular margins, elliptical in shape of size 6 cm x 1 cm, present over mid of dorsal surface of right forearm exposing adipose tissue." However, during the course of his examination-in-chief, the weapon which was shown to him, was a "Darat", a weapon completely different in nomenclature, vis-a-vis, a Kripan or a sword rather solitarily deposed by PW-3 to be the relevant weapon of offence. The afore factum as borne out, from a reading of his examination-in-chief, remains intact, as, neither the trial Court discounted the afore version, through its making court observations nor the learned APP concerned, for belying the afore, through his ensuring, that the weapon of offence enclosed within the sealed parcel, seals whereof are disclosed to be intact, was incorrectly described by PW-1, to be Darat, whereas, upon the relevant weapon, upon being retrieved from the sealed cloth parcel, did at its glance, reflect that in fact it was a Kripan. Therefore, for lack of any observations (supra) by the learned trial Court, and, also for lack of the afore concert, before the learned trial Court, by the learned APP, begets an inference, that the prosecution has hence ipso facto belied the recitals carried in Ex.PW2/B, and, has also discounted the ocular version(s) rendered with respect to the genesis of the prosecution case, by the PWs concerned, whereins, each, except PW-3, testified that the accused at the relevant time, was carrying a Kripan, and, with user thereof, he struck upon the victim, hence injuries, as become enumerated in Ex.PW1/A. Sequel thereof is that the apposite inter se connectivity inter se Ex.PW2/B rather with ocular versions becomes snapped, and, hence the verdict of acquittal pronounced by the learned First Appellate Court, does warrant, its becoming affirmed, and, maintained by this Court. 8. Be that as it may, the Investigating Officer while stepping into the witness box, as PW-7, has made a communication therein, that blood stains were carried on the alleged weapon of offence. However, though he was required under law to send the weapon of offence to the FSL concerned, for the latter rendering an opinion thereon, qua the compatibility of the blood stains occurring on the weapon of offence hence with the blood group of the victim. However, he failed to recourse the afore ordained mechanism, for bringing the requisite compatibility inter se the blood group of the victim, vis-a-vis, the blood stains occurring on the Kripan. The afore comprised the best scientific evidence for clinching the charge against the accused. However, necessarily, the,want of existence on record of the afore best scientific evidence, as erupts from the lack of the Investigating Officer, rather sending the blood stained Kripan to the FSL concerned, for enabling the latter hence rendering an opinion, with respect to the inter se compatibility inter se the blood stains occurring thereon, vis-a-vis, the blood group of the victim, constrains a conclusion, from this Court, that the prosecution has failed to collect, and, produce the best scientific evidence. Therefore, the verdict of acquittal recorded by the learned Sessions Judge concerned also hence deserves to be affirmed, and, maintained by this Court. 9. Lastly, even assuming that, for the afore stated reasons, the testifications of the ocular witnesses to the occurrence, and also the recitals carried in the recovery memo Ex.PW2/B, do become falsified. Therefore, the verdict of acquittal recorded by the learned Sessions Judge concerned also hence deserves to be affirmed, and, maintained by this Court. 9. Lastly, even assuming that, for the afore stated reasons, the testifications of the ocular witnesses to the occurrence, and also the recitals carried in the recovery memo Ex.PW2/B, do become falsified. However, the effect of the afore falsity, yet may become blunted, upon, the Investigating Officer concerned, drawing a sketch/Khakha, of the alleged weapon of offence, as, became recovered through memo Ex.PW2/B. From the afore sketch/Khakha, it may have been possible for the learned trial Court, to dehors PW-1, unerodingly, in his examination-in-chief making articulations, that "Darat" became shown to him, to, rather co-relate and compare the sizes and measurements, of "Darat" with the sizes and measurement, of the weapon of offence, recovered through Ex.PW2/B. Since, sketch(es) or khakha(s) either of Kripan, as shown and respectively spoken by the prosecution witnesses, to be the alleged weapon of offence, except PW-3, who articulates it being a "Sword", and/ or Darat, as rather articulated by PW1, upon it being shown to him in Court, remained neither drawn by the Investigating Officer nor obviously become tendered into evidence. Therefore, the learned Magistrate concerned, was defacilitated dehors PW-1 speaking contrary to the recitals in Ex.PW2/B, to make measurements of the apposite dimension(s), and, size(s) of sword/Darat/Kripan, with the apposite dimensions carried in the validly prepared Sketch/Khakha, for hence his rendering court observations, vis-a-vis, the afore dissenting evidence, vis-a-vis, the weapon of offence, and, wherethrough, rather the afore contradictions may have been reconciled. However, since he omits to make observations during the course of the recording of the testification of PW-1, reiteratedly for the afore lack, of, existence on record of sketch/khakha of the weapon of offence, recovered through Ex.PW2/B. In sequel, this Court assigns credit to the testification of PW-1, who unerrodingly communicated in his examination-in-chief, that Darat, and, not Kripan, was the alleged weapon of offence. The afore inter se dichotomy inter se the testifications of PWs concerned, with the production of weapon of offence in court, during the examination-in-chief of PW-1, does tellingly, erode the veracity(ies) of the testifications, of the PWs concerned, and/or of the Investigating Officer concerned in his recovering the weapon of offence through Ex.PW2/B. Therefore, the accused is entitled to the benefit of doubt. 10. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge concerned, 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 Sessions Judge concerned, hence, also not suffers from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 11. Consequently, there is no merit in the extant appeal, and, it is dismissed accordingly. The judgment impugned before this Court is affirmed. All pending applications also stand disposed of. Records be sent back forthwith.