Himachal Pradesh High Court
State Of H.P vs Ashok Kumar And Others on 28 November, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Appeal No. 606 of 2008
Decided on : 28/11/2016
State of H.P. .....Appellant.
of
Versus
Ashok Kumar and others .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. R.S.Thakur, Additional. A.G.
For the Respondents: Mr. N.S.Chandel, Advocate.
_______________________________________________________
Sureshwar Thakur, Judge (Oral)
The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 7.6.2008 by the learned Judicial Magistrate, 1st Class, Ghumarwin, District Bilaspur, in Case No. 287/2 of 2004/2001, 1 Whether reporters of the local papers may be allowed to see the judgment?
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whereby she acquitted the respondents (for short 'accused') for .
the offences charged.
2. The brief facts of the case are that on 15.2.2001 the complainant Kailash Devi came to the Police Station alongwith her son Mukesh Kumar and Kashmiri Devi Pradhan Berthin. The of complainant reported that on 15.2.2001 in the morning they were rt in their house when at about 8.30 the accused Kishore Kumar came in side their house and asked where is Mukesh Kumar. She stated that Mukesh Kumar was in side the house. On this the accused Kishor Kumar asked her to bring Mukesh outside into the courtary. The complainant Kailash Devi asked the accused Kishore Kumar what the matter was, however, Kishor Kumar accused insisted that he shall himself ask to Mukesh Kumar and became angry. The accused Kishor Kumar pulled the arm of shirt worn by the complainant and tore it from the arm and neck. The accused threatened that he will burn the vehicle belonging to the complainant and he will do away with like of Mukesh Kumar by using pistol. In the meanwhile, Mukesh Kumar came out side to rescue the complainant, however, accused Kishor Kumar pulled ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...3...
Mukesh Kumar towards the Berthin Chowk there accused Kishore .
Kumar along with his brother Ashok Kumar and co-accused Jeevan started beating Mukesh Kumar with kicks and fist blows.
Due to these beatings Mukesh Kumar was injured in his stomach and back etc. On the statement of complainant the F.I.R. was of registered. The injuries received by Mukesh Kumar were got rt medically examined. The injuries were found to be simple in nature except the dental injuries which were found to be grievous with the blunt weapon. Thus case under Section 325 IPC was made out against the accused. Police took into possession shirt belonging to Kailash Devi and prepared spot map and recorded the statement of witnesses. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court.
3. A charge stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 325, 323, 506 IPC read with Section 34 IPC to which they pleaded not guilty and claimed trial.
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4. In order to prove its case, the prosecution examined 6 .
witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. They did not choose to lead any of evidence in defence.
5. rt On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
6. The learned 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 evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it of the relevant material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
7. The learned counsel appearing for the respondents has with considerable force and vigour contended qua the findings of acquittal recorded by the Court below standing based on a ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...5...
mature and balanced appreciation of evidence on record by the .
learned trial Court 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, of evaluated the entire evidence on record.
9. rt The learned trial Court had pronounced a verdict of acquittal upon the accused respondents (a) on anvil of the complainants' testification before the learned trial Court holding visible digressions from the contents embodied in Ext. PW1-/A wherein she had unveiled qua Kishore Kumar visiting her house, whereas her testification in contradiction thereto holding echoings qua co-accused Ashok Kumar visiting her house; (b) hers while testifying embellishing besides improving upon the factum qua the wielding of a pistol by Ashok Kumar significantly when the factum aforesaid stood undisclosed by her in her previous statement recorded in writing; (c) the testifications of the prosecution witnesses omitting to unflinchingly unveil the factum qua denture of victim Mukesh Kumar suffering impairment also a ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...6...
tooth standing dislodged therefrom; (d) contradictions occurring .
in the testification of PW-4 vis.a.vis. the testification of PW-1 qua the place whereat shirt Ext.P-1 belonging to PW-1 begot tearings significantly with PW-1 deposing qua Ext.P-1 begetting tearings at her house whereas in contradiction thereof PW-4 testifying qua of the relevant tearings borne thereon occurring near Berthin rt Chowk; (e) Omission of examination by the prosecution of the doctor who prepared MLC qua Mukesh Kumar.
10. Insofar as the initial reason as stands propounded by the learned trial Court to pronounce an order of acquittal upon the accused respondents significantly its portraying qua thereupon the genesis of the prosecution case remaining unproven stands bereft of vigour arising from the factum of the learned defence counsel while subjecting PW-1 to cross-
examination his putting a suggestion to her couched in an affirmative phraseology, holding therewithin unfoldments, qua both Ashok Kumar and Kishore Kumar visiting the house of PW-1, suggestion whereof obviously elicited from her an apposite affirmative response. However, the learned counsel appearing ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...7...
for the accused respondents contends of the impact of the .
aforesaid couching in an affirmative phraseology of the suggestion aforesaid put by the learned defence counsel to PW-1 while holding her to cross-examination is merely an attempt on his part to belittle her creditworthiness rendering them to be not of readable to hold any communication qua any acquiescence rt thereof by the defence. However, the aforesaid submission is unacceptable to this Court as the learned counsel for the respondents while holding the prosecution witnesses to cross-
examination stands enjoined to with utmost skill besides with extreme wariness formulate the suggestions to be put to the prosecution witnesses. A defence counsel for negativing the testifications of the prosecution witnesses occurring in their respective examinations in chief stands enjoined to put suggestions to them couched in a disaffirmative phraseology whereupon the prosecution witnesses would proceed to render their answer thereto either in the affirmative or in the negative.
However, the learned defence counsel while holding PW-1 to cross examination rather has proceeded to couch in an ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...8...
affirmative phraseology the apposite suggestions which he .
purveyed to PW-1 while holding her to cross examination, answer(s) whereto also stood elicited from her in the affirmative.
The sequel of the aforesaid affirmative couching of the phraseology of the apposite suggestions put by the learned of defence counsel to PW-1 while holding her to cross-examination rt cannot hold any communication than of the defence acquiescing to the factum of both Kishore Kumar and Ashok Kumar recording their respective presence at the relevant site of occurrence at the stage when the genesis of the prosecution case erupted.
Therefrom it was inapt for the learned trial Magistrate to conclude qua with PW-1 while testifying qua the aforesaid facet hers hence improving besides detracting from her previous statement in writing wherein she disclosed qua accused Kishore Kumar recording his presence at the relevant site of occurrence in contradiction whereof she testified qua rather accused Ashok Kumar recording his presence at the relevant site of occurrence her testification hence standing vitiated with the taints aforesaid nor it was apt for the learned trial Magistrate to conclude qua ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...9...
with blatant contradictions occurring in the testification of PW-1 .
embodied in her examination in chief vis.a.vis. her previous statement recorded in writing wherein the presence of both Ashok Kumar and Kishore Kumar at the relevant site of occurrence stood unembodied, its vigour hence standing eroded of besides dispelled, conspicuously when the effect of the aforesaid rt acquiescence of the defence for reasons aforestated is qua both accused Ashok Kumar and co-accused Kishore Kumar recording their presence at the relevant site of occurrence.
11. Apparently in the previous statement qua the prosecution case embodied in F.I.R. comprised in Ext.PW-1/A there occurs a bespeaking therein by the complainant qua Kishore Kumar threatening to eliminate Mukesh Kumar by firing a pistol shot at him in consonance therewith the learned defence counsel while holding PW-1 to cross examination put a suggestion to her couched in an affirmative phraseology whereto PW-1 rendered an apposite affirmative answer thereupon the inevitable sequel which is warranted, is qua the defence acquiescing to the aforesaid factum yet unlike the sequel ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...10...
emanating from the precedingly alluded acquiescence made by .
PW-1, the effect of the acquiescence of the defence of Ashok Kumar at the relevant time wielding a pistol would not capitalize any inference qua thereupon the prosecution succeeding in proving qua accused Ashok Kumar wielding a pistol significantly of when on a close reading of the cross-examination of the rt Investigating Officer it is apparent qua its unveiling qua during the course of his holding investigations his not recovering any pistol from the possession of the accused nor obviously any memo in consonance therewith neither stood adduced in evidence nor stood concomitantly proven. In sequel thereto it appears of the prosecution not proving the factum of Ashok Kumar wielding a pistol more especially when on conclusion qua the investigations held by the Investigating Officer no recitals occur in the apposite report filed by him before the Court concerned holding therewithin echoings qua accused Ashok Kumar while holding a pistol his infracting the provisions of the Arms Act.
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12. The learned trial Magistrate had concluded qua the .
prosecution abysmally wanting in adducing cogent proof for succoring the charge qua the accused respondents qua theirs committing an offence punishable under Section 325 IPC arising from the teeth of Mukesh Kumar standing dislocated from his of denture on blows standing perpetrated upon him by the accused.
rt Also on anvil of the prosecution witnesses deposing contrarily qua the factum aforesaid besides on anvil of the prosecution not proving the apposite MLC nor the prosecution proving the report of the radiologist concerned who conducted an x-ray examination of the denture of Mukesh Kumar, it concluded of hence the aforesaid factum remaining unsubstantiated. Initially the learned Additional Advocate General makes a submission qua with the prosecution witnesses in their respective cross-examinations significantly PW-1, PW-2 and PW-3 while meteing apposite affirmative answers to the suggestions couched in an affirmative phraseology as stood put to them by the learned defence counsel suggestion(s) whereof while encompassing the facet aforesaid hence holding a loud proclamation of the defence acquiescing ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...12...
qua the teeth occurring in the denture of Mukesh Kumar suffering .
dislocation besides their falling apart therefrom. However, the aforesaid submission warrants its standing discountenanced given the Investigating Officer in his cross-examination echoing therein qua on Mukesh Kumar recording his presence before him his of complaining qua only his suffering pain in his denture whereas rt his thereat not detecting any of his teeth standing dislocated therefrom or their falling apart from his denture. The aforesaid unfoldments made by the Investigating Officer during the course of his standing subjected to cross-examination by the learned defence counsel when obviously is enjoined to be read in coagulation with the testifications occurring in the cross-
examination of the prosecution witnesses who contrarily on apposite affirmative suggestions qua the facet aforesaid put respectively to them by the learned defence counsel meted affirmative answers thereto, in sequel whereto the apposite conclusion which warrants its standing formed by this Court significantly when the Investigating Officer on his standing subjected to cross-examination by the learned defence counsel ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...13...
he voices therein qua at the relevant time his not detecting the .
teeth occurring in the denture of Mukesh Kumar suffering any dislocation or theirs falling apart therefrom yet with the learned APP concerned not thereupon concerting to belie him by making a request upon the learned Magistrate for holding him to cross-
of examination qua the factum aforesaid begets an inference qua rt this Court standing constrained to conclude qua the prosecution acquiescing to the factum of the teeth occurring in the denture of Mukesh Kumar neither standing dislocated nor any of his teeth occurring therein falling apart.
13. Moreover, reiteratedly when this Court for reasons aforestated has concluded qua the Investigating Officer belying the testifications of other prosecution witnesses qua the facet aforesaid also when with his hence belying the testifications of the other prosecution witnesses qua the relevant facet aforesaid he stood not concerted by the learned APP to stand subjected to further examination or further cross-examination whereupon hence it is to be concluded of the prosecution acquiescing qua the factum of the relevant testifications qua the facet aforesaid ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...14...
occurring in the cross-examination of the Investigating Officer .
enjoying an aura of truth besides credibility. Also an inference stands erected qua the aforesaid testification of the Investigating Officer embodied in his cross-examination countervailing the effect of affirmative answers rendered by the prosecution of witnesses to the apposite affirmative suggestion put to them by rt the learned defence counsel while holding them to cross-
examination.
14. Furthermore, the prosecution was enjoined to significantly with the MLC concerned also the report of the Radiologist who subjected the denture of Mukesh Kumar to X-ray examination not falling within the ambit of Section 293 Cr.P.C whereupon alone the aforestated apposite report(s) hence falling within the statutory ambit of Section 292 Cr.P.C. would render them to be per se admissible dehors their respective authors not stepping into the witness box. In sequel thereto it was imperative for the prosecution to prove the apposite MLC prepared by the doctor concerned qua victim Mukesh Kumar also to prove the apposite X-ray conducted by the radiologist ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...15...
concerned by its leading their respective authors into the witness .
box. The prosecution omitted to discharge the aforesaid onus of hence cogently proving the apposite MLC qua Mukesh Kumar besides the apposite report prepared qua him by the Radiological expert whereupon it is to be concluded of the prosecution not of proving the contents existing therein. In sequel, thereto it is to rt be concluded of the prosecution not succeeding in proving the charge under Section 325 IPC against the accused.
15. Shirt Ext.P-1 stood recovered under memo Ext.PW-
1/B and one of the witnesses thereto PW-4 has proven the factum of his signature occurring in memo Ext.PW-1/B whereunder its recovery stood effectuated. Also in his testification PW-4 echos qua Ext.P-1 belonging to PW-1 consequently with his admitting the occurrence of his signatures on Ext.PW-1/B wherein its recovery stood effectuated he stands estopped by the mandate of Sections 91 and 92 of the Indian Evidence Act to resile from its contents whereupon obviously an inference qua hence unflinching proof emanating from PW-4 qua effectuation of the relevant efficacious recovery thereunder can ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...16...
stand formidably erected besides with PW-4 also deposing qua .
Ext.PW-1/B standing owned by PW-1 whereupon his testification in contradiction with PW-1 qua its begetting tearings not as deposed by PW-1 at the latter's house but at Berthin Chowk pales into insignificance especially when the factum aforesaid of its of begetting tearings at the house of PW-1 when stands unveiled in rt the examination in chief of PW-1 has remained unconcerted to stand rid of its sanctity by the learned defence counsel while holding her to cross-examination by his putting apposite suggestions for hence eroding the tenacity of the aforesaid unfoldments occurring in the examination in chief of PW-1. In sequel thereto also the effect of PW-4 contradicting PW-1 qua the relevant tearings brone on the shirt comprised in Ext.P-1 standing begotten not at the house of PW-1 rather at Berthin Chowk looses its force besides effect nor also thereupon the genesis of the prosecution case qua the relevant tearings qua the shirt of PW-1 standing begotten at her house stands uneroded of its sanctity. A close reading of the testifications of the prosecution witnesses does unfold of the learned defence counsel while ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...17...
holding them to cross-examination putting affirmative suggestion .
to them holding therewithin communication qua the accused dragging victim mukesh Kumar upto Berthin Chowk whereat they belaboured him whereto affirmative answer stood meted by the prosecution witness. The natural corollary thereof is of with the of defence acquiescing to the factum of the accused respondent rt dragging victim Mukesh Kumar upto Berthin Chowk whereat they belaboured him, the factum aforesaid warranting imputation of credence thereupon.
16. Since none of the prosecution witnesses depose qua any incriminatory role in the alleged occurrence of accused Jeevan Kumar hence he stands acquitted of the charge framed against him in sequel whereto the judgement impugned herebefore against him is maintained and affirmed.
17. For the reasons which have been recorded hereinabove, this Court holds that the learned Judicial Magistrate has 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 Judicial Magistrate suffers from ::: Downloaded on - 15/04/2017 21:38:08 :::HCHP ...18...
a gross perversity or absurdity of mis-appreciation and non .
appreciation of evidence on record. In sequel thereto, I find merit in the instant appeal, which is accordingly allowed and the judgment of acquittal qua accused respondents Ashok Kumar and Kishore Kumar rendered by the learned Judicial Magistrate, of Ghumarwin, District Bilaspur, is quashed and set-aside.
rt Consequently, for the reasons aforesaid the accused respondents Ashok Kumar and Kishore Kumar stand convicted for theirs committing offences punishable under Sections 451, 323 and 506 read with Section 34 IPC whereas they stand acquitted for offences punishable under Section 325 IPC. They be produced before this Court on 16th December, 2016 for theirs being heard on the quantum of sentence.
28th November, 2016. ( Sureshwar Thakur ) ™ Judge.
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