Himachal Pradesh High Court
State Of H.P vs Shri Vikas Sood And Another on 5 September, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 185 of 2008.
Date of Decision: 5th September, 2016.
.
State of H.P. .....Appellant.
Versus
Shri Vikas Sood and another ....Respondents.
of
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt Whether approved for reporting? Yes.
For the Appellant: Mr. Vivek Singh Attri, Dy. A.G. For the Respondents: Mr. Lovneeesh Kanwar, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge (oral).
The instant appeal stands directed by the State of H.P. against the judgment of the learned Chief Judicial Magistrate, Shimla, District Shimla, Himachal Pradesh, rendered on 28.12.2007 in Criminal Case No. 127/2 of 04/2000, whereby, the latter Court acquitted the accused/respondents for offences punishable under Sections 353, 332 and 506 read with Section 34 of the Indian Penal Code.
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 22. The facts relevant to decide the instant case are that on 3.7.2001 Rajinder Singh had been plying bus No. HP-07-3045 from bus stand to Kasumpti colony and .
had been discharging duties as public servant. At about 1.20 p.m., when bus reached at Ghora Hospital Cart Road, one of the accused Vivek Sood appeared in a motorcycle bearing No. CH-01S-8830 from Sabji Mandi of side. He was signaled by the police official to stop the same. After having seen the motor cycle coming to the rt main road, the complainant stopped his bus but despite thereof, the motorcyclist failed to stop the motorcycle and fell in front of the bus. Meanwhile, co-accused Vikas Sood joined accused Vivek Sood and both in furtherance of common intention of each other came to the driver window, tried to put out the complainant. Not only this, both the accused in furtherance of common intention of other voluntarily caused simple hurt to the complainant with intention to deter or prevent him from discharging his duties as public servant. The shirt of the complainant was also torn. Complainant was saved from the wraths of the accused by passengers of the bus as also Dhayan Singh conductor and Shiv Sharan driver.
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 3Accused criminally intimidated the complainant and fled away leaving behind the motorcycle. The Investigating Officer on reaching spot, recorded statement of the .
complainant Ex.PW2/A which was sent to police station on the basis of which FIR was registered against the accused. Thereafter the police completed all the codal formalities in accordance with law.
of
3. On conclusion of investigations into the offences allegedly committed by the accused, a report rt under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court.
4. The accused were charged by the learned trial Court for theirs committing offences punishable under Sections 332, 506 and read with Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 10 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication in the case.
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 45. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.
.
6. The State of H.P. stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on rt record, rather, theirs standing sequelled by gross mis-
appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction.
7. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather theirs meriting vindication.
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 58. 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. The factum probandum of the accused holding at the relevant site of occurrence the apposite mensrea for committing the actus reus of attempting to pull the complainant from the driver's seat of the bus, of seat whereof stood occupied by him at the relevant time also of theirs inflicting simple injuries upon him, rt stands proven by the testimonies of PW-1, PW-3 and PW-
5, all ocular witnesses qua the occurrence. All the ocular witnesses, in their respective ocular testifications qua the occurrence have deposed qua it with mutual intra se corroboration. Their ocular testifications qua the occurrence stand lent corroboration by Ex.PW6/A, the apposite MLC prepared by the doctor concerned on subjecting the complainant to medical examination.
Since, Ex.PW6/A holds manifestations therein in tandem with the ocular account qua the occurrence rendered by the ocular witnesses thereto tersely of the accused subjecting the complainant/injured to an assault whereupon simple injuries pronounced therein stood ::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 6 entailed upon his person beget a natural consequence of the prosecution succeeding in adducing clinching ocular evidence holding congruity with the apposite MLC .
vis-a-vis the complainant. In aftermath, apposite reverence thereto stood enjoined to be meted by the learned trial Court. Contrarily its omitting to mete reverence thereto hence has committed a gross error in of undermining its tenacity. Even though the effect of apposite vivid pronouncements occurring in the ocular rt testifications qua the occurrence rendered by PW-1, PW-
3 and PW-5 is qua theirs vividly echoing the inculpatory role of the accused, nonetheless, the learned trial Court proceeded to record an order of acquittal vis-a-vis the accused on the anvil of a stray acquiescence by PW3 to a suggestion put to him in his cross-examination wherein he exculpated the inculpatory role of the accused in the occurrence. However, with PW-3 in his cross-examination exculpating the inculpatory role of the accused also his belittling the entire ocular testifications qua the occurrence embodied in his examination-in-chief wherewithin he inculpated the accused, would not in its entirety negate the ::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 7 prosecution case. The learned trial Court was enjoined to read the testimony of PW-3 comprised in his examination-in-chief conjointly with his testimony .
embodied in his cross-examination besides was enjoined to construe the impact of the ocular testifications qua the occurrence rendered by PW-1 and PW-5 wherein firm echoings occur qua the inculpatory role of the of accused/respondents also when the testification qua the occurrence embodied in the examination-in-chief of PW-
rt 3 holds therewithin an ascription of an incriminatory role vis-a-vis the accused-respondents whereupon hence credence was imputable, contrarily its meteing deference to an isolated communication occurring in the deposition of PW-3 wherein he exculpates the inculpatory role of the accused has, sequelled a gross error qua its undermining the impact of consistent credible ocular testifications qua the occurrence rendered by PW-1 and PW-5 also has entailed an ill consequence of its eroding the effect of ascription of an inculpatory role qua them even by PW-3 in his examination-
in-chief. Furthermore, the deference as meted by it to the isolated exculpatory communications qua the ::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 8 accused, communications whereof occur in the cross-
examination of PW-3, has sequelled an ill consequence qua its negating the impact of efficacious credible ocular .
testifications of other ocular witnesses to the occurrence whereas on theirs standing read with intra se coagulation vis-a-vis the testifications of PW-3 embodied in his examination-in-chief unravel qua theirs holding of intra se congruity, whereupon hence no inference than of the inculpatory role of the accused/respondents rt vividly surgingforth stands awakened.
10. The learned trial court also has overlooked the factum of Ex.PW6/A manifesting therein in concurrence with the ocular rendition qua the occurrence by ocular witnesses thereto, of simple injuries standing sustained by the complainant/accused, in sequel, of his standing belaboured by the accused/respondents also has undermined the vigour of efficacious apt manifestations occurring in Ex.PW6/A whereas theirs holding concurrence with the testifications qua the occurrence embodied in the examination-in-chief of PW-3, warranted deference standing meted thereto by it, contrarily, it has inaptly imputed sanctity to PW-3 in his ::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 9 cross-examination negating the inculpatory role of the accused. Consequently, Ex.PW6/A scores off the effect, if any, of the communication made by PW-3 in his cross-
.
examination wherein he exculpates the guilt of the accused, necessarily, hence his testifications in his examination-in-chief when also hold concurrence with the ocular testifications qua it rendered by PW-1 of besides by PW-5, constrains this Court to conclude of the learned trial court in omitting to construe the rt testimonies of the aforesaid witnesses in a wholesome manner has committed a gross error in mis-appreciating their probative worth.
11. Be that as it may, the learned trial Court has faulted the investigations on the score of the Investigating Officer not making or concerting to establish the identity of the accused. However, the factum of the Investigating Officer not adducing cogent proof qua the identity of the accused would not give leverage to the accused/respondents to contend of theirs holding no connectivity in the alleged occurrence.
Contrarily, when the learned defence counsel while holding PW-3 to cross-examination has put apposite ::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 10 suggestion to him visibly portraying qua the accused/respondent recording their presence at the site of occurrence, suggestion whereof sequelled an answer .
in the affirmative from PW-3 also when the nuance of the suggestion put by the learned defence counsel to PW-3 while holding him to cross-examination devolves upon the factum of the accused making an inquiry from of him qua the reason for the happenings at the relevant site of occurrence also when the effect of a suggestion rt put to PW-3 holds pronouncement therein qua the role of the accused in the occurrence whereupon PW-3 purveyed an answer exculpating the role of the accused/respondents, cumulative effect whereof of the aforesaid pronouncements for reasons aforestated stands answered against the accused/respondents rather also does hence portray of the accused/respondents, acquiescing to the trite factum of theirs recording their presence at the site of occurrence rendering unworthwhile any concert by the Investigating Officer to establish by adducing cogent evidence qua their identity besides their connectivity in the occurrence .
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP 1112. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below 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 trial Court suffers from perversity or absurdity of mis-appreciation and non appreciation of evidence on of record.
13. Consequently, the instant appeal preferred by rt the State of H.P. is allowed. The accused/respondents are convicted for theirs committing offences punishable under Sections 332 and 506 of the IPC read with Section 34 of the IPC. Accused/Convicts be heard on quantum of sentence on 21st September, 2016.
(Sureshwar Thakur)
5 th
September, 2016 Judge.
(jai)
::: Downloaded on - 15/04/2017 21:09:43 :::HCHP