Himachal Pradesh High Court
State Of H.P vs Gian Chand And Another on 9 May, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 465 of 2007.
Date of Decision: 9th May, 2016.
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State of H.P. .....Appellant.
Versus
Gian Chand 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. Surender Saklani, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State of H.P. against the judgment of the learned Judicial Magistrate 1st Class, Jogindernagar, District Mandi, Himachal Pradesh, rendered on 31.7.2007 in Police Challan No. 277-II/2002 whereby, the learned trial Court acquitted the accused/respondents herein of the offences punishable under Sections 341, 325 and 506 of the Indian Panel Code.
::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 22. The facts relevant to decide the instant case are that on 28.8.2002 at about 8 P.M in Village Kothi, Tehsil Jogindernagar, festival of Holi was being .
celebrated by the villagers. The Holi prepared by the accused was set a fire by some unknown person and both the accused suspected the complainant to be the person committing this mischief. Both the accused of persons at about 8.30 p.m. chased the complainant and thereafter rt wrongfully restrained him by preventing him from proceeding further forwards his house. Accused Gian Chand gave the kick blow on the left leg of the complainant as a result of which complainant fell down and thereafter both the accused pounced upon the complainant and gave kicks and fist blows to him for about 15-20 minutes. The complainant raised hue and cry. On which various villagers including Sakina, Roshni, Mina and Labh Singh etc., assembled on the spot and rescued the complainant from the clutches of the accused. The complainant received serious injury on his leg and he was therefore shifted to his house by the eye witnesses. On the next morning, complainant made ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 3 his statement under Section 154, Cr.P.C. to S.I. Baldev Singh on the basis of which FIR was registered in the police station against the accused. Thereafter the .
police conducted the investigation in the case.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure of was prepared and filed in the Court.
4. The accused were charged by the learned rt trial Court for theirs committing offences punishable under Sections 341, 325 and 506 of the IPC. In proof of the prosecution case, the prosecution examined 11 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.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondents herein.
::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 46. The State of H.P. is 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 acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, they are sequelled by of gross mis-appreciation of the material on record.
Hence, he contends that the findings of acquittal be rt 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 that 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 merit vindication.
8. 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 genesis of the prosecution occurrence stands underscored by PW-1. He has qua the ill-fated ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 5 occurrence deposed in corroboration besides in tandem with the version qua it as stands displayed in FIR. He also deposed of the ill-fated occurrence taking .
place in the court yard of his house. However, even if, the sole testimony of the complainant if supported by medical evidence as exists on record which does lend succor to the echoing by the complainant in his of deposition comprised in his examination-in-chief of his in sequel to rt the accused belabouring him, his sustaining injury on his knee, nonetheless, with the Investigating Officer proceeding to associate in the investigation conducted by him, the purported ocular witnesses thereto, enjoined the ocular witnesses to, for the prosecution case, holding formidability depose in tandem qua the site of occurrence as deposed by PW-1 being the court yard of the latter's house. In case, they render a deposition in contradiction to PW-1 qua the site of occurrence, necessarily, hence, an obvious inference which would stand aroused would be of their introduction as ocular witnesses to the ill-
fated occurrence by the Investigating Officer being merely an afterthought besides their purported ocular ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 6 account qua the occurrence being wholly contrived as well as engineered. PW-2, the purported ocular witness to the occurrence has not supported the .
prosecution case. However, the factum of hers omitting to lend support to the prosecution case would not carry immense potency as hers standing constrained to not lend succor to the prosecution case of appears to stand generated by the factum as exists in her cross-examination conducted by the learned APP, rt on permission standing granted to him by the learned trial Court on hers turning hostile of hers holding a relationship with accused Gain Chand, in sequel, with hers turning hostile standing generated from hers holding a relationship with accused Gain Chand would constrain this Court to conclude of hers belying the prosecution case holding no worth for thereupon dis-
imputing credence to the genesis of the prosecution case.
10. PW-3, another ocular witness to the occurrence has deposed in her cross-examination of the site of occurrence being the path below her house.
Obviously, with PW-3 in her cross-examination ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 7 disclosing the site of occurrence to be a path existing below her house is in rife contradiction with the deposition of the complainant, who in her cross-
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examination therein has divulged of the site of occurrence being the court yard of his house. With blatant contradictions occurring intra se the testimony of PW-1 and PW-3 qua the site of occurrence belies the of depiction in the apposite site plan of the site whereat the ill-fated occurrence took place constituting it to be rt the apt relevant place. In sequel, it appears that with PW-3 belying by contradicting the testimony of PW-1 qua the site whereat the occurrence took place, has hence not rendered efficacious proof qua the genesis of the prosecution version rather an inference stands aroused of hers being merely an invented or contrived witness.
11. PW-4 has deposed a version qua the site whereat the ill-fated occurrence took place in corroboration to the testimony of PW-3. Obviously, she contradicts the testimony rendered by PW-1 qua the site of occurrence. In aftermath, her testimony too omits to give succor to the prosecution version of ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 8 the place designated in the site plan standing cogently proved by intra se corroborative evidence of the purported eye witnesses to the occurrence .
constituting the place whereat the ill-fated occurrence took place. Obviously, with manifest intra se contradictions occurring in the testimonies of the purported eye witnesses to the occurrence, the of prosecution has failed to discharge the onus cast upon it, to by adducing cogent evidence in proof of the rt place depicted in the site plan constituting the place whereat the alleged occurrence took place. In sequel, the ensuing inference is of the complainant rearing a false case against the accused.
12. The learned Deputy Advocate General has contended with much vigour of PW-5 rendering a deposition qua the occurrence in tandem with the site plan. However, he at the end of his cross-examination wherein he has voiced the factum of Gain Chand perpetrating an assault on the victim beneath the house of the latter and accused Ran Singh scuffling with the victim inside the house of the latter, in its entirely erodes the vitals of the prosecution case of ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 9 both the accused/respondents herein belabouring the victim at the place designated in the site plan.
Consequently, PW-5 too appears to be rendering an .
engineered and contrived version qua the occurrence, as also it appears hence he obviously was not available at the site of occurrence at the time contemporaneous to its occurrence thereat.
of
13. Be that as it may, PW-5 in the previous portion of his cross-examination deposes of the rt occurrence taking place in the wheat fields yet the place aforesaid as deposed by him whereat the ill-
fated occurrence took place stands belied by his in the last portion of his cross examination echoing of the occurrence/occurrences respectively taking place beneath the house of Balak Ram and inside the house of Balak Ram. The effect thereof of the aforesaid inter se contradictions in the testimony of PW-5 is of this Court standing constrained to with aplomb conclude of the prosecution failing in its enjoined duty to prove to the hilt its case against the accused/respondents herein of theirs assaulting the victim at the place designated in the site plan. The ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 10 apt sequitur thereof is of with dis-concurrence occurring intra se the testimonies of the ocular witnesses qua the site whereat the occurrence took .
place falsifies in its entirety the prosecution case against the accused/respondents herein.
14. Predominantly, even the Investigating Officer has in his cross-examination voiced of the of occurrence taking place in the wheat fields. However, he has also proceeded to communicate therein of his rt on his visiting the wheat fields, his not thereat detecting any damage standing suffered by the wheat crop. Since, damage to the wheat crop whereat the occurrence took place was an imperative sequel, to lend succor to the prosecution version of the occurrence taking place thereat, obviously, with PW-8 underscoring in his cross-examination of the wheat crop standing undamaged belies his testimony of the occurrence taking place thereat. Moreover, with his testimony qua the wheat fields constituted in the place of occurrence whereat the wheat crop yet remained undamaged hence grips his testimony with an inherent fallacy, moreover when he stands ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 11 contradicted by PW-5, who has contrarily voiced of damage standing suffered by the wheat crop is also a portrayal of both PW-5 and PW-8 not giving succor to .
the prosecution case qua the site whereat the occurrence took place, inasmuch as deposed by PW-1 of its occurring in the court yard of his house. Also from the aforesaid upsurgings an inference stands of generated of PW-5 being also an engineered witness to the occurrence. Be that as it may, the prosecution rt has failed to discharge the prime factum of proving to the hilt by corroborative evidence for rendering the place designated in the site plan being construable to be the site whereat the ill-fated occurrence took place.
In sequel, any discrepant evidence is insufficient to record any findings of conviction against the accused.
15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below 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 trial Court does not suffer from any perversity or absurdity of mis-appreciation and non ::: Downloaded on - 15/04/2017 20:18:33 :::HCHP 12 appreciation of evidence on record, rather it has aptly appreciated the material available on record.
16. Consequently, I find no merit in the instant .
appeal which is accordingly dismissed and the judgment of acquittal recorded in favour of the accused/respondents herein by the learned trial Court is affirmed. Records be sent back forthwith.
of
(Sureshwar Thakur)
9 th
May, 2016
rt Judge.
(jai)
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