Himachal Pradesh High Court
Bhura Khan vs State Of Himachal Pradesh on 10 November, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
Cr. Appeal No. 100 of 2020
Reserved on: 3.11.2020
Decided on : 10.11.2020
Bhura Khan ...Appellant.
Versus
State of Himachal Pradesh ....Respondent.
Coram:
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Dalip K Sharma, Advocate.
For the Respondent: Mr. Hemant Vaid, Addl.A.G. Sureshwar Thakur, Judge.
The appellant/accused/convict prefers, the, instant appeal before this Court, against, the verdict of conviction recorded, upon, Sessions Trial No. 6-NL/7 of 2016, by the learned Additional Sessions Judge, Nalagarh, District Solan, H.P. The appellant herein (for short "the accused") became convicted, for, the charges framed against him, under, Section 302, and, under Section 323, of, the Indian Penal Code, and, in consequence thereof, he becomes sentenced as follows:-
Under Section 302 of IPC:- to undergo rigorous imprisonment for life alongwith a fine of Rs.5,000/-, and, in default of 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 11/11/2020 20:16:22 :::HCHP
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payment of fine to further undergo simple imprisonment for a .
period of 6 months.
Under Section 323 of IPC:- to undergo simple imprisonment for six months alongwith a fine of Rs.1000/-, and, in default of payment of fine to further undergo simple imprisonment for a period of one month.
2. The genesis of the prosecution case, becomes embodied in a statement made, under Section 154 of Cr.P.C, by one Hari Kishan, statement whereof, is embodied in Ex. PW-1/A, (i) wherein the maker thereof, narrates qua in vicinity of his Jhuggi, the Jhuggi of one Sanjeev, Maan Singh, and, of Bhura Singh also existing. He also makes a narrative therein qua on 3.7.2015, at about 8.00 p.m., when he was inside his jhuggi, his responding to shrieks and cries, hence emanating from outside, and upon, his egressing therefrom, his sighting the accused to wield an iron pipe, in his hand(s). He also unfolds therein, vis-a-vis, the accused hurling abuses, upon the deceased, and, upon Sanjeev and Maan Singh, making intercession(s), thereupon the accused getting infuriated, and, hence his inflicting blows of iron pipe, upon the neck, of Sanjeev, and, upon the head of Maan Singh, and, whereafter his fleeing, from, the site of occurrence, rather alongwith the iron pipe. He also makes, a, narration therein qua his alongwith other neighbours, taking the afore, to Government Hospital, Baddi, whereat, injured Sanjeev was declared dead.
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3. In pursuance to the afore made statement, a formal FIR .
borne in PW-9/C became lodged with Police Station, Baddi. Moreover, during the course of investigations, being made into the charged offences, the Investigating Officer, through memo, borne in Ex.
PW-1/B, recorded an apt disclosure statement of the accused, and, therein echoings are borne, vis-a-vis, the accused camouflaging and hiding, the, afore weapon of offence, in the bushes near Ghagar river, and, his evincing his willingness to lead the Investigating Officer hence thereupto. Also, in pursuance thereto, through memo Ex. PW-1/C, iron pipe Ex. P-1, became recovered, and, became sealed in cloth parcel, borne in Ex. PA.
4. Moreover the body of the deceased, became put to autopsy, by the Doctor concerned, and, an apposite post mortem report, embodied in Ex. PW-7/A, became prepared, and, its -perusal unfolds, vis-a-vis, the cause of demise of the deceased becoming engendered, from, the antemortem injuries, as became narrated therein.
5. The ocular witnesses to the occurrence, stepped into the witness box, as PW-1 (Hari Krishan), and, as PW-2 (Maan Singh), and, both, in their respectively recorded depositions, as, carried in their respective examinations-in-chief, hence mete inter-se corroboration, to, ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...4...
the genesis of the prosecution case, as embodied in Ex. PW-1/A. Tritely .
put, both make consistent disclosures, with, the, completest inter-se and intra-se corroboration, vis-a-vis, the striking of the weapon, of offence Ex. P-1, by the accused, on, the neck of the deceased, and, thereafter the latter falling onto the ground. However, despite both the afore ocular witnesses, to the occurrence rendering, succor to the charge, drawn against the accused, inasmuch as, their respective depositions remaining unblemished, vis-a-vis, any taint; (a) arising from theirs respectively improving or embellishing, upon, theirs previously recorded statements in writing; (b) and, or arising from theirs making intra-se contradictions intra-se their respectively recorded testifications, as, borne in their respective examinations-in-chief, and, in their respective cross-
examinations; (c) besides rather theirs not making any rife intra-se contradictions in their respective depositions, as, carried in their respective examinations-in-chief, and, their respective cross-
examination; (d) thereupon, though therethrough the charge(s), as, drawn against the accused became amenable, to be concluded to be invincibly proven.
6. However, the learned counsel, for the accused, has drawn, the, attention of this Court to a visible dichotomy or a rife contradiction, ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...5...
hence, occurring inter-se the deposed oral accounts, appertaining to the .
occurrence, and, as rendered by both PW-1 and PW-2, and, vis-a-vis, the hereinafter extracted occurrences, in the post mortem report, embodied in PW-7/A, and, proven by PW-7 (Dr. Dixit), inasmuch, as readings thereof disclosing, vis-a-vis, there occurring no inter-se compatibility inter-se the afore, given the deposed ocular account qua the occurrence, making underlinings qua (a) a blow of iron pipe Ex. P-1 being delivered on the neck of the deceased, and, though only a singular antemortem injury in consonance therewith, becomes narrated in the Post Mortem report (b) however with the Doctor concerned in his deposition, making articulations qua the afore singular antemortem injury, occurring on the neck of the deceased, not, singularly comprising the solitary cause of demise of the deceased, thereupon the afore inter-se dichotomy inter-se the afores, hence therethrough(s), making vivid upsurgings, especially when alternate thereto ante mortem injuries, also become reflected in PW-7/A to become existing on the body of the deceased.
"Antimortum injuries
1. Contusion on head left to central part, partial region.
2. Contusion on right temporal and occipital region.
3. Abrasion on neck (back and right lateral)
4. Contusion on right shoulder
5. Abrasion on right knee
6. Abrasion on back upper (thoracial region) ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...6...
After opening the skull
1. Depressed bone fracture on left parital region left to .
central part (sutur). Extradural and intra dural clots present.
2. Multiple fracture on right temporal and occipital region extradural and intra dural clots present."
7. The afore reared contention, before this Court, would hold, immense sway, as, it would fall within the declaration of law, as, made by the Hon'ble Apex Court that (a) upon inter-se contradiction occurring inter-se medical evidence, and, ocular account, (b) thereupon the latter prevailing upon the former or the latter underwhelming the former. The afore cast principle of law hence assigning prevalence to ocular evidence/account, over medical evidence/account, would hold, the apposite exculpatory effects, only upon there occurring rife inter-se dichotomy inter-se the afore, and, or if the testified ocular account rather becomes amenable to become construable to be holding valid inclinations towards the defence, upon (a) the testification, of, ocular witnesses being tainted with vices, of, gross improvements or embellishments, vis-a-vis, their respectively recorded previous statements in writing (b) and/ or there occurring rife intra-se contradictions inter-se their respectively recorded depositions, (c) and or theirs making intra-se contradictions intra-se their respective examinations-in-chief, and, their respective cross-examinations (d) and/ ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...7...
or upon the recovery memo becoming invalidated through cogent .
evidence becoming adduced, vis-a-vis, the signatures of the accused hence occurring thereon being false. Even though, for the reasons to be ascribed hereinabove, this Court has underwhelmed arguments, hence addressed before this Court, by the learned counsel for the appellant, and, appertaining to the ocular version, qua the occurrence, being bereft of any vigour, and, hence when the ocular account, prevails upon the medical evidence/account. Corollary whereof being qua the afore inter-
se dichotomy, rather not holding any clout or sway with this Court, for negating the charge drawn against the accused. Nonetheless the vigour, of, the afore submission, is, yet to be tested.
8. In making testings, of, the vigour of the afore made submission before this Court, this Court alludes to the afore deposed ocular account hence rendered by the ocular witnesses thereto. A reading of the deposed ocular account, as, rendered qua the occurrence, hence by PW-1, makes disclosures, vis-a-vis, the blow of iron pipe, being delivered by the accused, upon, the neck of the deceased, and, with injuries compatible therewith, becoming narrated, in the post mortem report, borne in Ex. PW-7/A, (i) thereupon when it becomes imminently impossible, for ocular witnesses', to the occurrence, to, ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...8...
disclose with the precisest, of, exactitude, the region or place around the .
neck of the deceased, whereon the fatal blows, of, iron pipe became delivered, by the accused, (ii) and, nor when it is voiced, by the afore ocular witnesses, to the occurrence, that the front of the neck, being the region, whereon the blow of Ex.P-1, became delivered by the accused,
(iii) nor when the defence counsel makes elicitations qua therewith, during, his holding both the afore, to, cross-examinations, whereupon an ensuing sequel becomes bolstered, vis-a-vis, the ocular witnesses rather alluding to the back region, of, the neck of the deceased, to, hence comprise the region of the deceased's neck, whereon the blow of Ex.P-
1, become meted by the accused. Moreso when consonant therewith injuries occur thereon, and, also become pronounced in Ex. PW-7/A (i) thereupon this Court is leaned to derive an inference qua with the injuries borne, and, narrated in the apposite post mortem report, bearing compatibility, with the ocular account, as, made by PW-1 and PW-2,
(iii) and, also though when the afore antemortem injuries are disclosed by PW-7, to be not caused, by a singular blow of Ex.P-1, delivered on the deceased's neck, however, the afore occurrence of ante mortem injuries, are visible upon portions, other than those regions, as become deposed by the ocular witnesses,whereon, the accused with user of Ex.
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P-1, inflicted blows, (iv) nonetheless, and, rather disables the aforemade .
deposition(s), by PW-7, to, carry any apposite exculpatory effect, as both PW-1 and PW-2 un-erodingly depose(s), vis-a-vis, after the afore portion or region of the deceased's neck, being struck by the accused, with Ex.P-1, his falling onto the ground. Since as aforestated the learned defence counsel, has been unable to elicit, during, the course of his making, cross-examinations, upon, the ocular witnesses, to, the occurrence hence any echoings from each of them, and, theirs/its making visible bespeakings, qua the portion of the deceased's neck, whereon(s), blow of iron pipe, became struck by the accused, being the portion or region below the face, and, not being below the occipital region of the deceased, (i) thereupon, the effects of or wants of the afore suggestion, being meted by the learned counsel, to the ocular witnesses to the occurrence, is, candidly suggestive qua the back of the deceased's neck, being the region, whereon, the blow of iron pipe became meted by the accused, (ii) reemphasizingly when therethrough, there occurs inter-
se compatibility inter-se medical evidence, and, credible ocular account, as, testified vis-a-vis, the occurrence. Further more it is also invincible, to, therefrom marshal an inference, vis-a-vis, after the blow, with, user of Ex.P-1 being struck by the accused, on the back of the deceased's ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...10...
neck, the latter falling onto the ground. In aftermath, the further ensuing .
sequel therefrom, is that the afore connected injuries, borne on the peripheral region, or on the region adjacent to deceased's neck, whereon, the blow of iron pipe, became delivered by the accused, become(s), hence concludable to occur thereon, in sequel to the deceased falling on to the ground, after his receiving the afore injuries thereon i.e the back of his neck. The reasons, for this Court making the afore invincible conclusion, becomes aroused, from the learned defence counsel, upon, holding PW-7 to cross-examination rather omitting to mete suggestion, to him, hence suggestive qua the injuries occurring in/ on the occipital region of the deceased's neck, being not possible, on account, of his falling on to the ground, in sequel to his receiving, the, blow of iron pipe, upon, his adjacent thereto neck region. Moreover, the afore connected therewith injuries, occurring in the peripheral region of the neck, when also become, narrated in the post mortem report, they are hence to be concluded to occur thereon, in sequel to the deceased falling on to the ground, after his receiving the afore injury on his neck.
9. Be that as it may, the recovery of Ex. P-1, was made through, a memo borne in Ex.PW-1/C and, in, pursuance to a disclosure statement, as, made by the accused, and, as become borne in ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...11...
Ex.PW-1/B. Since the afore disclosure statement, graphically bespeaks, .
vis-a-vis, the accused holding the exclusive knowledge, of the place of his hiding and camouflaging, the weapon of offence Ex. P-1, thereupon, with his also leading the investigating Officer to the afore place, and, wherefrom he ensured recovery of iron pipe Ex.P-1. Consequently, the, drawing of memos borne in Ex. PW-1/B and Ex. PW-1/C assume(s), an, aura of completest evidentiary solemnity, through, the witnesses thereto, hence through theirs un-eroded testifications, obviously, proving the efficacious drawing of the afore memos, and, also from the trite factum of the unchallenged signatures of the accused, becoming borne thereon.
Moreover, the prima donna factum of exclusivity of knowledge of the accused, vis-a-vis the place of his hiding or camouflaging, the weapon of offence, as, becomes voiced in Ex.PW-1/B, does fully negate, worth(s), of, arguments if any, vis-a-vis, its occurrence at the site of its recovery, being construable to be an invention or a stratagem, hence deployed by the Investigating Officer.
10. Succinctly and reiteratedly, since, the, uncontested signatures occur, both in the disclosure statement, and, on the recovery memo rather of the accused, and, also of the witnesses concerned, and, with the latters supporting the veracities of drawing, of, the afore ::: Downloaded on - 11/11/2020 20:16:22 :::HCHP ...12...
memos, thereupon the afore piece of evidence also metes succor, to the .
testifications rendered by the ocular witnesses, vis-a-vis, the genesis of the prosecution case, and, thereupon, doubt, if any, as may emerge, from any purported inter-se dichotomy inter-se ocular account and medical evidence, rather becomes completely dispelled.
11. In view of the above, there is no merit in the appeal, and, the same is accordingly dismissed.
r The impugned judgment of conviction and sentence, as, become imposed upon the convict, by the learned trial Court, stands maintained and affirmed. Records be sent down forthwith. All pending applications stand disposed of accordingly.
( Sureshwar Thakur), Judge.
10th November, 2020 ( Chander Bhusan Barowalia ),
(priti) Judge.
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