Himachal Pradesh High Court
State Of H.P vs Avinash Gulati & Others on 27 July, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 192 of 2007.
Date of Decision: 27th July, 2016.
.
State of H.P. .....Appellant.
Versus
Avinash Gulati & others ....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 Respondent: Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge (Oral).
The instant appeal stands directed by the State of H.P. against the judgment of the learned Judicial Magistrate 1st Class, Court No. 2, Dehra, District Kangra, Himachal Pradesh, rendered on 20.01.2007 in Cr. Case No. 106-II/04 whereby, the learned trial Court acquitted the accused/respondents herein for theirs allegedly committing offences ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 2 punishable under Sections 323, 324, 325 read with Section 34 of the Indian Panel Code.
2. The facts relevant to decide the instant case .
are that on 20.08.2004 at about 10 a.m. accused Avinash Gulati was carrying construction work of his house and had thrown soil on land belonging to the complainant party to which complainant's mother of objected and accused Avinash Gulati hurled abuses to which she again objected.
rt Accused Avinash Gulati caused fist blows on complainant's mother and accused Usha Gulati caught hold her from hair and head and severed fist blows and grounded her. When the complainant tried to rescue his mother, he too was beaten by fist blows by accused Avinash Gulati, Usha Gulati and Suresh Gulati. The complainant and his mother were rescued by Vijay Sood wife of Shri Sham Sood and the incident was witnessed by Bhuvnesh Master, resident of Deh. It is alleged that due to the beatings given by the accused, the complainant sustained injuries on his face, tooth, leg and his mother also sustained injuries on her ear, gums and other parts of the body. On the aforesaid complaint, ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 3 FIR was registered at Police Station, Jawalamukhi against the accused. Thereafter, the police machinery came into motion and completed the investigation .
formalities.
3. On conclusion of the investigations, 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 323, 324, 325 read with Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 9 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 they claimed innocence and pleaded false implication in the case. However, they did not lead any defence evidence.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.
::: Downloaded on - 15/04/2017 20:54:04 :::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, theirs being sequelled by of gross mis-appreciation of the material on record.
Hence, he contends qua the findings of acquittal being rt reversed by this Court in the exercise of its appellate jurisdiction and theirs being 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 theirs not necessitating interference, rather theirs 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.
::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 59. The learned Deputy Advocate General contended with force qua with absolute concurrence existing inter se the unfoldments qua the occurrence .
embodied in the FIR with the respective MLCs comprised in Ex.PW7/A, Ex.PW7/B and Ex.PW9/A, prepared by the doctors concerned vis-a-vis the victims, renders the proven genesis of the of prosecution case of the accused belabouring the victims with kick and fist blows besides striking them rt with a danda, hence sequeling the dislocation of tooth of victim Sanjeev Sood. He contends of the aforesaid concurrence existing inter se the aforesaid relevant incriminatory pieces of evidence, it was in apt for the learned trial Court to discard their respective probative worth. He proceeds to contend of in the learned trial Court discarding their probative tenacity has led to its recording an erroneous besides flawed order of acquittal qua the accused.
10. For the aforesaid submission addressed before this Court by the learned Deputy Advocate General to acquire potency enjoins, on a piercing analysis of the testimony of PW-3 besides the ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 6 testimony of the Investigating Officer besides also of revelations occurring in Ex.PW7/A and Ex.PW9/A qua palpable upsurgings emanating therefrom qua victim .
Sanjeev Sood in prompt succession to the ill-fated occurrence delivering his dislocated tooth to either the Investigating Officer or to the Doctor concerned, who thereafter proceeded to deliver its possession to of the Investigating Officer, who recorded its seizure under an apt seizure memo drawn by him whereupon rt this Court would be prodded to conclude of the genesis of the prosecution case qua his tooth standing dislocated from its denture in sequel to his standing belaboured by the accused hence acquring a hue of veracity.
11. A reading of the testimony of PW-3 unfolds of his handing over his dislocated tooth to the police.
The aforesaid testimony of PW-3 qua his in quick spontaneity to the ill-fated occurrence delivering possession of his disjointed tooth to the Investigating Officer stand contradicted by the latter. A perusal of Ex.PW7/A constituting the MLC prepared by the doctor concerned, who in quick succession to the occurrence ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 7 subjected the victim to medical examination unfolds the trite factum of the victim not at the stage contemporaneous to the author of Ex.PW7/A .
subjecting him to medical examination delivering his disjointed tooth to him. Even a perusal of Ex.PW9/A omits to make revelations of thereat the victim delivering his disjointed tooth to PW-9. Omission on of the part of PW-3 to deliver his disjointed tooth to the author of Ex.PW7/A also to the author of Ex.PW9/A rt also his omission to deliver his disjointed tooth to the Investigating Officer renders its standing placed inside a bottle whereupon seal impressions stood embossed to be per se unconnected with the alleged incident.
Even if, seals borne on the relevant bottle wherein the disjointed purported tooth of the victim was inserted would not hold any leverage to the prosecution to contend of the broken/disjointed tooth of the victim held inside it standing related to the ill-fated occurrence nor also it can be concluded of the disjointed tooth existing inside the sealed bottle standing disjointed from the denture of the victim in sequel to his standing assaulted by the ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 8 accused/respondents. The best evidence qua the factum of the disjointed tooth belonging to the victim stood constituted in the report of the expert .
concerned wheretowhom, the Investigating Officer on his purportedly sealing it inside a bottle had transmitted it for his recording an opinion thereon.
However, the disjointed tooth of the victim stood of untransmitted by the Investigating Officer to the expert concerned.
rt Consequently, no opinion stood recorded by the expert concerned vis-a-vis the purported tooth of the victim placed inside the sealed bottle. In aftermath, it cannot be concluded that the genesis of the prosecution case holds any vigour. In the absence of the expert opining qua the disjointed tooth of the victim placed inside a sealed bottle belonging to him, this Court is constrained to conclude of the purported tooth of the victim held inside a sealed bottle not belonging to him. Also thereupon it can not be concluded that the disjointed tooth of the victim stood disjointed from his denture on his standing belaboured by the accused.
::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 912. The effect of the above discussion is of with the relevant best evidence being amiss hereat, the contention of the learned Deputy Advocate General .
qua the communications, in the FIR vis-a-vis the accused of the latter by delivering kick and fist blows on the person of the victims sequelling entailment of injuries upon their respective persons, as delineated in of Ex.PW7/A and Ex.PW7/B, standing meted concurrence with unfoldments in compatibility therewith existing in rt the MLCs aforesaid, rendering the findings of acquittal recorded by the learned trial Court to be infirm, holding no formidability or vigour.
13. With deep pervasive falsity, for reasons aforesaid seeping into the genesis of the prosecution case qua victim Sanjeev Sood suffering dislocation of his tooth sequelled by his standing belaboured by the accused, rears also a concomitant effect of the ascription of an incriminatory role, in its entirety, vis-
a-vis the accused comprised in theirs subjecting co-
victim to beatings in sequel whereto she as spelt out in MLC Ex.PW7/A also sustained injuries on her person also standing belied. Consequently, when it was ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 10 incumbent upon the prosecution to adduce cogent and conclusive evidence in display of the entire genesis of the prosecution case holding veracity imperatively .
when the ascription of an incriminatory role vis-a-vis the accused qua theirs by belabouring victim Sanjeev Sood sequeling the dislocation of his tooth suffers falsity, for reiteration, hence the entire prosecution of case does not hold any virtue of truth or veracity.
14. Further more, in the FIR a disclosure is rt made by the victim/informant of the ill-fated occurrence standing witnessed by two ocular witnesses thereto. Though, the Investigating Officer had recorded the statements of ocular witnesses under Section 161 of the Cr.P.C., yet both the ocular witnesses to the occurrence were given up by the APP concerned on the purported ground of their being won over by the accused,. Even if, the learned APP had unmasked on his holding pre-confabulations with them of theirs holding leanings against the prosecution case, he stood enjoined to yet facilitate theirs stepping into the witness box whereupon in the event of theirs reneging from their previous statements ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 11 recorded in writing, he held a leverage to obtain permission of the learned trial Court to after theirs standing declared hostile qua his holding them to .
cross-examination. Only, on theirs standing subjected to cross-examination by the learned APP would have brought to the surface the factum of their statements in their examinations-in-chief, even when therein they of omitted to lend succor to the prosecution case warranting or not warranting theirs stand accepted.
rt However, the omission in regard aforesaid by the learned APP concerned constrains this Court to conclude qua his in a mechanical, cursory manner on a specious ground of theirs being won over, not facilitating theirs stepping into witness box whereat alone their veracity was emanable for assessment besides on an wholesome appraisal of their testimonies, the learned trial Court would have disintered therefrom their veracity, contrarily his omission in the regard aforesaid also constrains a conclusion from this Court of the prosecution smothering the truth qua the occurrence, truth whereof otherwise may have been unfolded by the ::: Downloaded on - 15/04/2017 20:54:04 :::HCHP 12 ocular witnesses thereto. Consequently, a smothered version qua the genesis of the prosecution case cannot hold any viour or credence.
.
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 of therefrom the analysis of the material on record by the learned trial Court does not suffer from any rt perversity or absurdity of mis-appreciation and non 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/respondent herein by the learned trial Court is affirmed. Records be sent back forthwith.
(Sureshwar Thakur)
27 th
July, 2016 Judge.
(jai)
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