Himachal Pradesh High Court
State Of H.P vs Vinod Kumar on 30 September, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 159 of 2009
Reserved on : 24.9.2019
.
Date of decision 30.9.2019
State of H.P. ...Appellant
versus
Vinod Kumar ....Respondent.
Coram:
For the appellant:
r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
Mr. Hemant Vaid Addl. A.G. with
Mr. Y.S. Thakur & Mr. Vikrant
Chandel Dy. A.Gs.
For the respondent: Mr. Bhuvnesh Sharma, Advocate.
Sureshwar Thakur, Judge:
Accused Baldev Parkash, Ganesh Dutt, and, accused Vinod Kumar, stood, charged, for, theirs committing offences, punishable, under Section 452, 380, 323, 506, read with Section 34, of, the Indian Penal Code, and, visavis, the, afore framed charges, against, all the afore accused, the learned trial Magistrate concerned, convicted accused Baldev Parkash, and, accused Ganesh Dutt, for, the offences 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/10/2019 20:25:23 :::HCHP -2-punishable under Section 323, 452, 566, read with Section 34 IPC, and, acquitted them, for, commission, of, an offence punishable, under, Section 380 IPC. However, accused Vinod .
Kumar, stood, convicted, for, the commission of offences punishable, under, Section 323, 452, 506, 380 read with Section 34 IPC, and, subsequently, in consonance therewith, sentences stood imposed, upon, each of the afore convicts.
Convict Vinod Kumar, standing, aggrieved therefrom, preferred an appeal before the learned Sessions Judge, Una, District Una, H.P., and, the latter proceeded to reverse, the, verdict, of, conviction, and, therewith sentence imposed, upon, convict Vinod Kumar, hence, State of Himachal Pradesh, becoming aggrieved therefrom, hence, proceeded, to, thereagainst institute the instant appeal, before this Court. Conspicuously, this Court, on 17.5.2017, visavis, Cr. Appeal No. 610 of 2008, titled State of H.P. vs. Baldev Parkash, and, another hence made, an, order, of, dismissal thereon (a) and, when the afore appeal arose hereat, visavis, FIR No. 219 of 2002, and, when the latter FIR bears similarity, visavis, the, FIR, in, the instant appeal, (b) thereupon with this Court recording, an order, rather dismissing, the, aggrieved State of H.Ps'. appeal directed ::: Downloaded on - 03/10/2019 20:25:23 :::HCHP -3- thereagainst, (c) hence for maintaining consistency interse the afore verdict pronounced, by this Court in Cr. Appeal No. 610 of 2008, and, hence in conformity therewith, this Court is .
constrained, to, also dismiss, the, instant criminal appeal.
2. The testifications' of the complainant/victims, and, also of the eye witnesses, to, the illfated occurrence, corroborates, the, version qua the occurrence, embodied in F.I.R. Ext.PW8/A. Their respective testifications' hence, do not, suffer from any taint of theirs' either improving, upon, or, embellishing, upon, their respective previous statements, recorded, in writing, (i) rather, when their respective testifications, are, also bereft of any stains, of, any interse contradictions, occurring, in their respective testifications, hence their respective testifications warranted imputation, of, credence thereto, (ii) however, the learned Sessions Judge, had dispelled the vigor, of, their testifications, on the ground of the Investigating Officer concerned "not" joining, as eye witnesses, to the occurrence, the owner(s) of shops located, in, the closest proximity, to, the site of occurrence, rather his joining PW1, and, PW4, as purported eye witnesses to the occurrence, and, whose testimonies, were, held, to, palpably acquire a taint of ::: Downloaded on - 03/10/2019 20:25:23 :::HCHP -4- interestedness, arising from, the fact of theirs holding acquaintance(s), with, the complainant/victim, (iii) nonetheless, the aforesaid reason, as assigned, by the learned Sessions .
Judge, for, pronouncing a judgment of acquittal, upon, the accused, may not acquire any vigor, (iv) as, the, mere interestedness of any ocular witnesses, to, the occurrence, would not per se constrain a conclusion, that, their relevant testified ocular versions, hence warranting disimputation, of, credence, (v) "unless" the defence, had, during the course of subjecting each of them, to, crossexamination "unearthed"
from them hence echoings, visavis, theirs' being unavailable, at, the site of occurrence, (vi) however, despite the aforesaid witnesses standing subjected, to, the rigor, of, an exacting crossexamination, their respective versions qua the occurrence, as, unfolded in their respective examinationsin chief, remained unshattered, visavis, the efficacy.
Consequently, the defence rather failed to establish, that, they were unavailable at the site of occurrence, at the relevant time, of its, taking place, (vii), hence, on score aforesaid, it is prima facie difficult to accept, the, reasons assigned by the learned Sessions Judge, that, their respective versions qua the ::: Downloaded on - 03/10/2019 20:25:23 :::HCHP -5- occurrence, are, incredible, (viii) arising from the factum of theirs holding leanings visàvis the accused, (ix) and, that hence the Investigating Officer concerned, was enjoined, to, .
associate as eye witnesses thereto, the owners, of, shops located in proximity, to, the site of occurrence, (x) and, who however may have lent a truthful, and, impartisan ocular version qua the occurrence, (xi) omission whereof begetting an apt inference qua the Investigating Officer, may be, conveying in his apposite report, a, coloured unbelievable version qua the occurrence, (xii) nonetheless, the genesis of the prosecution version, does beget, a stain of untruthfulness, (xiii) significantly when one of the coaccused Baldev Prakash, is, evidently a witness, in, a case registered under Section 376 IPC against the complainant PW1. The aforesaid evident fact of coaccused Baldev Prakesh, standing cited, as a witness against the victim/complainants "does" when construed, along with, the Investigating Officer, omitting, to, associate as eye witnesses, to, the occurrence, certain shopkeepers rather holding commercial establishments, in, close proximity, to, the site of occurrence, rather, his associating PW2, and, PW4, as purported eye witnesses to the occurrence, who, however hold ::: Downloaded on - 03/10/2019 20:25:23 :::HCHP -6- leanings viaavis the victims/complainant, arising, from, the factum of theirs holding, a, close acquaintance with them, (xiv) hence garnering an inference, that, a stained/coloured version .
qua the occurrence, being embodied, in the apposite F.I.R. (xv) also a stained version qua it standing testified, by the victims/complainant, and, also by, the, purported eye witnesses thereto, who, deposed as PW2, and, as PW4, qua therewith.
3. The learned Additional Advocate General, has, contended, that, the MLC borne on Ext.PW9/A, exhibit whereof, standing proven by PW9, and, also with the latter, in his testification, deposing, that the injuries reflected therein, being causeable, by user of Dandas, recovered under Memo Ext.PW1/B, hence ought to constrain a conclusion, that, dehors infirmity, if any, gripping, the testifications, of, the victims besides, of, PW2, and, of, PW4, yet, therethrough, the prosecution succeeding in establishing the charge.
4. The mere factum, of, proof of injuries, comprised in Ext. PW9/A, hence by the latters' author, and, also his testifying, that, their occurrence, on, the respective persons, of, the victims/complainant, being sequelable by user, of, Danda, ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -7- borne, in, Ext.PW1/B, does not perse enhance any conclusion, that, the prosecution, has, succeeded in proving, that, dandas Ext. P1 and P2, were used by coaccused .
concerned, for delivering blows, on, the respective persons, of, the victims/complainant. Contrarily when, for, reasons assigned above, rather the effect, of, the aforestated inference, that, the testifications of PW2, and, of PW4, rather acquiring a pervasive taint of inveracity, is, construed hence with the prosecution also for reasons assigned hereafter, rather not proving, the, factum of effectuation recovery of Ext. P1, and, of Ext. P2, exhibits whereof, are, respectively, the, Dandas, and, stolen cash worth Rs. 3000/, thereupon an inference, becoming bolstered, qua the prosecution, rather, contriving to falsely implicate, the, accused (a) the recitals embodied in Ext.
PW1/B, make a disclosure qua the complainant handing over dandas, to, the Investigating Officer concerned, (b) however, therein there, is, no reflection qua the date whereon he handed over Dandas, to, the Investigating Officer rather at the end of Ext. PW1/B the Investigating Officer makes an endorsement qua the aforesaid mode of handing over the Dandas rather occurring, on, 14.10.2002, (c) since Ext. PW1/B was ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -8- throughout, in the custody, of, the Investigating Officer concerned hence, the latter, the end of Ext. PW1/B, appears to have recorded an endorsement qua his preparing Ext. PW1/B, .
on 14.10.2002, (d) whereas for obtaining a firm conclusion therefrom qua its preparation occurring, on 14.10.2002, by the Investigating Officer concerned, an apposite therewith recital, was, also enjoined to be embodied therein, (e) and, also the signatories thereto were enjoined, to, under their respective signatures occurring therein, make, an endorsement, qua it, standing prepared, on 14.10.2002, (f) however, the aforesaid relevant endorsements, do not, visibly occur in Ext. PW1/B, (g) hence, it is to be concluded that the Investigating Officer concerned, through sheer contrivance, introducing Dandas, as, purported weapons of offence, with user whereof, the co accused inflicted injuries, on, the person of victims/ complainant, (h) moreso, when, with respect to the date, of, preparation of Ext.PW1/B neither PW1 nor PW4 makes any unequivocal apposite communication, (i) even otherwise, Dandas Ext.P1 and P2 are the incriminatory pieces, of, evidence against the accused respondents. Normally, the, recovery of any weapon of offence, has to occur within, the, ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -9- domain of Section 27, of, the Indian Evidence Act, provisions whereof stand extracted hereinafter:
27. How much of information received from .
accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
(i) wherein for any effectuation of recovery of any weapon, of, offence hence at the instance of the accused, by, the Investigating Officer concerned, to, hence acquire statutory vigor, (ii) enjoins the Investigating Officer concerned to, preceding his making, the, relevant recoveries, rather record a disclosure statement, of, the accused concerned, (iii) however, the Investigating Officer neither within the precincts of Section 27, of, the Indian Evidence Act, recorded any disclosure statement, of any of the accused concerned nor he proceeded to subsequent thereto hence effect, the, relevant recoveries, (iv) contrarily he, for reasons aforestated inefficaciously/fictitiously prepared Ext. PW1/B, by recording a recital therein qua the ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -10- victims/complainants, rather, handing over Dandas, to him, (v) the aforesaid incriminating piece(s) of evidence against the accused, stand canvassed, by the learned Deputy Advocate .
General, to be, not warranting hence disimputation, of, any credence thereto nor also it being open for this Court, to discard, their probative vigor, (vi) as the accused after using them left them, at the site of occurrence, whereafter they fled therefrom, (vii) hence, he contends, that, when the victims/complainant proceeded, to, handover the dandas, to, the Investigating Officer concerned. He also proceeds to contend, that, since the Investigating Officer concerned 'not' within the domain of Section 27, of, the Indian Evidence Act, effectuating their recovery, (viii) hence there was no legal necessity, cast upon him, to obey its mandate nor hence on its mandate standing infringed, rather would give any capital, to, the accused, (ix) however, the aforesaid submission warrants rejection, as the aforesaid manner of effectuation of recovery, of, purported weapon(s) of offence, appears to be made, by the Investigating Officer concerned, by his, actively circumventing the mandate, of, Section 27 of the Indian Evidence Act, (x) whereas, with the aforesaid weapons of offence rather ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -11- comprising, the, incriminating pieces of evidence also when, qua, recovery thereof, the, apt provisions, are, encapsulated in the relevant Indian Evidence Act, (xi) hence he was enjoined, to .
for, dispelling, any, arousal of suspicion, with, respect to the efficacy, of, the relevant recovery, (xii) hence revere, the, mandate thereof, rather than his proceeding, to, engineer an ingenious method, to proceed to make recovery, of, weapon(s), of, offence in the manner, he did, under memo Ext. PW1/B. Consequently, with this Court concluding that recovery of Dandas not holding any vigor, it is apt to conclude that the prosecution, has failed, to establish, that, the Dandas, were used, by the accused concerned, to inflict blows, on, the victims/complainants.
5. Be that as it may, the vigor of Ext. PW1/D, whereunder, recovery of cash holding, a, value, of, Rs. 3000/, stood, purportedly effectuated, and, recovery whereof is disclosed to occur, on, coaccused Baldev Parkash, handing over, the sum of Rs. 3000/ at police chowki, is also to be tested. In case this Court concludes, that, Ext. PW1/D, is fictitiously prepared, then the entire genesis of the prosecution version, as, comprised in F.I.R. rather would stand completely ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -12- shattered. Ext. PW1/D does not echo the date of its preparation. The accused came to be arrested on 14.10.2002, hence when, during, the, course of the custodial interrogation, .
of, the accused concerned, the Investigating Officer concerned, could well, have elicited, a, confession, with respect to his hiding or concealing a sum of Rs. 3000/, as, stood allegedly stolen, by, him from the cash box, of, the victim/complainant, yet, he appears to have not elicited, the, aforesaid confession, from, the accused, rather he appears, to, have engineered, the, preparation of Ext. PW1/D. Consequently, it is difficult to accept all, the, communications occurring therein, especially with coaccused concerned, being arrested, on the date of occurrence, yet his proceeding to walk, upto, the Chowki and handing over Rs. 3000/, to, the Investigating Officer. In aftermath, it appears, that, with critical inveracity also gripping the preparation, of, Ext. PW1/D, hence no reliance can be placed thereupon.
6. For the reasons which have been recorded hereinabove, this Court holds that the learned, Sessions Judge, has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis, of, the ::: Downloaded on - 03/10/2019 20:25:24 :::HCHP -13- material on record, by, the learned Sessions Judge, does, not suffer from any perversity or absurdity, of, misappreciation, and, of, non appreciation of evidence on record, rather it has .
aptly appreciated the material available on record.
7. In view of the above, I find no merit in this appeal, which is accordingly dismissed. In sequel, the impugned judgment, is, affirmed, and, maintained. Records be sent back forthwith.
(Sureshwar Thakur), 30 September, 2019 th Judge.
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