Himachal Pradesh High Court
Dharam Chand vs State Of H.P on 29 March, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Revision No. 139 of 2010
Decided on : 29.3.2017
Dharam Chand .....Petitioner.
Versus
State of H.P .....Respondent.
of
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
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Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Atul Jhingan, Advocate.
For the Respondent:
Mr. R.K Sharma, Deputy
Advocate General.
_____________________________________________
Sureshwar Thakur, Judge (oral)
The instant revision petition stands directed against the impugned judgment of 28.4.2010 rendered by the learned Additional Sessions Judge, FTC, Kullu in Criminal Appeal No. 07/2010, whereby he affirmed the judgment of 20.1.2010 rendered by the learned Judicial Magistrate, 1st Class, Manali, District Kullu, H.P. in Criminal Case No. 48-1/09: 46-II/09 whereupon the petitioner herein (hereinafter referred to as 1 Whether reporters of the local papers may be allowed to see the judgment?
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"accused") stood convicted besides sentenced for his committing .
an offence punishable under Section 326 of IPC.
2. Brief facts of the case are that on 5.11.2008 at 8 a.m. complainant Pawna Devi, her husband Chunni Lal and nephew Kuldeep were present in the room of the house. In the upper story of of the room of the house of the complainant, her brother-in-law (Jeth)/accused also resides alongwith his family. On the draining rt of water from the upper story of the room in which the accused alongwith his family resides, the complainant went upside and informed the accused with regard to the falling of water on her bed. On this accused started abusing her. The complainant came out to the verandah of the house. The husband of the complainant also arrived there. Accused in presence of Kuldip hit Chunni Lal with knife in his stomach and also threatened him to do away with his life and fled away. The injured thereafter was shifted to Mission Hospital, Manali for medical treatment. On the same day at 8.30 a.m. the complainant reported the matter to the police of Police Station, Manali through telephone. Rapat No. 15(a) was registered. After completing all codal formalities and on conclusion of the investigation into the offence by the ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...3...
investigating Officer, allegedly committed by the accused challan .
was prepared and filed in the Court
3. The accused stood charged by the learned trial Court for his committing offence punishable under Sections 326 and 506 IPC to which he pleaded not guilty and claimed trial.
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4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statement of rt the accused under Section 313 of the Code of Criminal Procedure was recorded wherein he pleaded innocence and claimed false implication. In defence he did not choose to lead any evidence.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal qua the accused for his committing an offence punishable under Section 506 of I.P.C however it returned findings of conviction qua the accused for his committing an offence punishable under Section 326 of IPC.
6. The learned counsel appearing for the accused has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court, findings whereof stood affirmed by the learned Appellate Court, standing not based on a proper appreciation of evidence on record rather theirs ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...4...
standing sequelled by gross mis-appreciation of the relevant .
material on record by both the Courts below. Hence he contends qua the concurrently recorded findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal.
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7. The learned Deputy Advocate General, has with considerable force and vigor contended qua the findings of rt conviction concurrently recorded by both the learned Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather meriting 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. In the alleged occurrence, wherein the prosecution ascribes a penal ascription qua the accused committing an offence punishable under Section 326 of I.P.C, the victim sustained injuries borne on Ex. PW-1/A proven by PW-1.
10. With PW-1 (Dr. Philip Alexander) making underscorings in his testification qua the injuries embodied in Ex. PW-1/A being ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...5...
sequel-able by user of a shape edged weapon also with proven .
efficacious recovery of knife (Ex.P-1) under memo Ex.PW-2/B, ultimately with the injured/victim and the complainant both with intra-se corroboration testifying in consonance with the recitals borne in the apposite FIR, thereupon the verdict(s) concurrently of recorded upon the accused are not amenable to a conclusion qua theirs warranting any reversal.
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11. Be that, as it may, the prosecution was enjoined to prove the factum of the injuries borne on Ex.PW-1/A standing, as deposed with utmost unison by both PWs 4 (Chunni Lal) and 6 (Smt. Pawna Devi), caused by user by the accused, of knife (Ex.P-
1), upon the abdomen of the victim, recovery whereof stood effectuated under memo Ex.PW-2/B besides also the prosecution was enjoined to prove qua the aforesaid recovery memo qua the purported weapon of offence holding the paramount statutory virtue of admissibility besides relevancy. In determining the aforesaid facet, the Investigating Officer concerned stood enjoined with a dire legal necessity, to, prior to his effectuating recovery of weapon of offence, his during the course of holding the accused to custodial interrogation, his recording the ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...6...
disclosure statement of the accused, holding unfoldments therein .
qua the place of its concealment or hiding by him, necessity whereof stands cornered within the domain of Section 27 of the Indian Evidence Act, 1872, provisions whereof stand extracted hereinafter also therein it stands propounded qua thereupon an of admissible besides a relevant custodial confessional statement of accused assuredly making its emergence, in sequel whereto the rt subsequent recovery of the weapon of offence, at the instance of the accused would hold immense evidentiary clout, contrarily when without preceding thereto, the apposite statutorily warranted custodial confessional disclosure statement of the accused remains unrecorded, thereupon any bald recovery of any weapon of offence at the instance of the accused by the investigating Officer would be hence wholly naked nor would it be construable to be an admissible besides a relevant piece of incriminatory evidence vis-à-vis the accused, significantly when the mandate of law warrants effectuation of the relevant recovery at the instance of the accused not under a composite recovery memo rather warrants recording prior thereto an admissible custodial disclosure statement of the accused. In other words, the ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...7...
recording of a disclosure statement of the accused by the .
Investigating officer prior his effectuating any "recovery" at the instance of the accused, is preemptory, its embodying the custodial confessional statement of the accused, omission to record whereof renders inconsequential besides inadmissible any of recovery under a naked bald recovery memo.
"27. How much of information received from accused may rt 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 proven."
12. Hereat, tritely with the Investigating Officer concerned prior to his effectuating recovery of weapon of offence, not recording the apt custodial admissible disclosure statement of the accused renders the indispensable canon held within the domain of Section 27 of the Indian Evidence Act qua the accused prior to his facilitating the Investigating Officer to effectuate recovery of the purported weapon of offence, his making an admissible relevant custodial confessional statement, remains wholly un- satiated hence rendering recovery, if any, at the instance of the accused, of the purported weapon of offence, to hold no probative ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...8...
vigor nor also it can be concluded qua the prosecution thereupon .
proving qua "knife" with purported user whereof injuries stood sustained by the victim standing used thereon by the accused.
13. Also complainant(PW-6) and Kuldeep (PW-2) in their previous statements recorded in writing make echoings qua the of effectuation of the relevant recovery of weapon of offence standing begotten by the Investigating Officer at the instance of rt the accused from a jungle, thereupon their testifications in variance thereto stand ingrained with a vice of theirs perse being in rife contradiction with the recitals borne in the apposite recovery memo, hence theirs constituting embellishments therefrom, whereupon the purported efficacious recovery of the alleged weapon of offence under an apposite memo, looses its apposite tenacity.
14. Injured PW-4 (Chunni Lal) in his testification recorded before the learned trial Court thereat omitted to, with utmost categoricality, identify the relevant weapon of offence (Ex.P-1) when it thereat stood shown to him in Court qua its comprising the weapon of offence with user whereof, the accused inflicted injuries on his person, whereupon a firm conclusion spurs qua ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...9...
hence the testifications of ocular witnesses to the occurrence .
wherein they with specificity assign an incriminatory role to the accused qua his with user of knife stabbing the victim, in sequel whereto he gained injuries on his person, thereupon loosing in their entirety their respective evidentiary sinew also it appears of qua hence theirs inventing a false ascription vis-à-vis the accused qua his, with purported user of weapon of offence thereupon rt stabbing the victim.
15. The injuries borne in Ex.PW-1/A are in stark contradiction(s) with the ocular version(s) qua the occurrence testified with intra-se harmony by both PW-4 besides by PW-6 wherein they ascribe qua the accused, a penal ascription qua his while purportedly wielding "knife", his delivering its singular blow on the abdomen of PW-4, whereas the injuries enunciated in Ex.PW-1/A unfold qua the victim apart from his receiving stab injuries, his body also holding injuries reflected in Sr. No. 2 to 5 in Ex.PW-1/A, whereupon also the testifications of ocular witnesses to the occurrence loose their respective creditworthiness rendering open a conclusion qua the complainant in collusion with the victim rearing a false case ::: Downloaded on - 15/04/2017 22:05:15 :::HCHP ...10...
against the accused moreso when the other ocular witness to the .
occurrence has not lent any succor to the charge.
16. The FSL concerned to which the knife as well as the clothes of the victim stood dispatched for eliciting an opinion therefrom qua the blood stains existing therein belonging to the of victim also omitted to pronounce in its apposite opinion borne on Ex. PX (report of FSL) qua the purported stains of blood held in rt T-shirt also in knife, belonging to the victim, in sequel thereto it appears qua the prosecution contriving the factum qua the accused stabbing the victim on his stomach with a "knife" in sequel, whereto the "knife" gathered blood stains thereon also its contriving the factum qua the T-Shirt of the accused also during the course of the occurrence, standing stained with blood.
17. Apparently the relevant site of occurrence is the "verandah" of the upper storey of the house apparently in close proximity whereof exists a "staircase", as unveiled in the testification of the complainant embodied in her cross-
examination wherewithin she also echoes qua nails standing embedded thereon, thereupon the effect of existence thereon of "nails" when stands coagulated with the aforesaid dis-
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concurrence inter-se the ocular version qua the occurrence vis-à-
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vis the pronouncements made in Ex.PW-1/A besides also with PW-1 during the course of his standing subjected to cross-
examination, his making a communication therein qua the injuries borne on Ex.PW-1/A being sequel-able by the victim of falling upon nails, hence boosts an inference qua the injuries borne on Ex.PW-1/A being a sequel to the victim falling on "nails"
rt embedded in the staircase.
18. In view of above discussion, the petition is allowed and the impugned judgment is quashed and set aside. The accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him.
Bail bonds, if any, furnished by the accused are discharged.
Records be sent down forthwith.
29th March, 2017 (Sureshwar Thakur)
(priti) Judge
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