Himachal Pradesh High Court
Vivek Kumar vs State Of Himachal Pradesh on 27 June, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Revision No. 75 of 2015
Decided on : 27.06.2016
Vivek Kumar .....Revisionist.
of
Versus
State of Himachal Pradesh .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ravinder Thakur, Advocate.
For the Respondent: Mr. Ravinder Singh Thakur, Additional
Advocate General.
_______________________________________________________
Sureshwar Thakur, Judge (Oral)
The instant revision petition stands preferred hereat by the accused as he stands aggrieved by the concurrently recorded renditions of both the Courts below whereby he stands convicted and consequently sentenced in the manner as encapsulated therein for his 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:41:24 :::HCHP...2...
committing offences punishable under Sections 279 and .
338 of the Indian Penal Code.
2. The brief facts of the case are that Sanjeev Kumar and his other friends had come to Manali on a trip and were staying in the house of their another friend Raj of Thakur. On 23.6.2010 at about 11 p.m after taking rt dinner Sanjeev Kumar was going towards his vehicle in order to sleep in it. He was on the side of the road when a car came from Rohtang side and hit him. On account of this collusion his left leg was fractured. He found that the car which had hit him was bearing No.HP-14B-7110 and its driver disclosed his name as Vivek Sharma. The victim was taken to Mission Hospital, Manali for treatment by his friends including Raj Thakur. On intimation of Medical Officer, Mission Hospital, Manali, a police party headed by ASI Daya Ram was dispatched to do the needful. On reaching there he recorded statement of Sanjeev Kumar and on its basis an F.I.R. was registered. During investigation ASI Daya Ram prepared ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...3...
site plan and recorded statements of witnesses and after .
completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused challan was prepared and filed in the Court.
3. Notice of accusation stood put to the of accused by the learned trial Court for his committing rt offences punishable under Sections 279, 337 and 338 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 8 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead any evidence in defence.
5. On an appraisal of the evidence on record, the learned Courts below returned findings of conviction against the accused.
::: Downloaded on - 15/04/2017 20:41:24 :::HCHP...4...
6. The accused stands aggrieved by the .
findings of conviction recorded by both the Courts below for his committing offences punishable under Sections 279 and 338 of the Indian Penal Code. The learned counsel appearing for the accused has concerted to of vigorously contend qua the findings of conviction rt recorded by both the Courts below standing not based on a proper appreciation of evidence on record, rather theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal.
7. On the other hand, the learned Additional Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Courts below standing based on a mature and balanced appreciation of ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...5...
evidence on record and theirs not necessitating any .
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.
of
9. The victim in the F.I.R. lodged qua the rt occurrence by him has disclosed therein qua the ill fated occurrence standing witnessed by all persons who alongwith the accused were aboard vehicle bearing No. HP 14B 7110. The rash and negligent manner of driving of the vehicle aforesaid by the accused sequelled the victim suffering fracture of his left leg, factum whereof stands proven by the apposite MLC comprised in Ext.PW-
1/A. The aforesaid enunciation by the victim in the F.I.R.
qua the accident standing witnessed by Gurjit Singh, Harvinder Singh and Varender Singh warranted theirs standing joined by the Investigating Officer in the apposite investigations held by him qua the occurrence.
However, the Investigating Officer omitted to solicit their ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...6...
participation in the apposite investigations conducted by .
him on the anvil of one Raj Kumar a purported eye witness to the incident disclosing therein of all the aforesaid not being ocular witnesses to the occurrence as at the relevant time they were inside their room. Also he of has made a disclosure qua omission on his part to solicit rt the participation of the afore-named persons standing generated by his concerts made upon them for summoning them, proving abortive. However, there exists on record no material comprised in his issuing written communications to them, demonstrative of his hence soliciting the participation of the afore-named persons divulged by the victim in the F.I.R to witness the occurrence. Consequently, it appears of the Investigating Officer deliberately omitting to associate the afore-named ocular witnesses to the occurrence for facilitating him to smother its truth, in sequel a smothered version qua the occurrence cannot hold any credence. Furthermore, the Investigating Officer has ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...7...
recorded a recital in the F.I.R. of Raj Kumar making a .
disclosure to him of Gurjit Singh, Harvinder Singh and Virender Singh not witnessing the occurrence, disclosure whereof prodded him to not solicit their participation in the apposite investigations held by him qua the ill-fated of occurrence. The aforesaid manifestations in the F.I.R per-se are rt dichotomous inasmuch as with the Investigating Officer suo moto disbelieving merely on one Raj Kumar dispelling their presence thereat, the version qua the road mishap spelt in the F.I.R by the victim wherein contrarily the victim has named the afore-named persons as witnesses thereto. Therefore, it was grossly inapt for the Investigating Officer to dispel the presence of the afore-named persons at the relevant time at the site of occurrence, also it was unwarranted for him to dispel the factum of theirs witnessing the occurrence merely on one Raj Kumar making a communication to him of theirs not witnessing the occurrence besides it appears of thereupon when for reasons aforesated his purported ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...8...
concerts to solicit their participation in the apposite .
investigations standing stained with a vice of falsity of hence his merely concocting specious reasons for his omitting to record the statements of the eye witnesses to the occurrence, statements whereof in case he had of proceeded to record would have unearthed the truth qua the occurrence.
rtAs a corollary, it is to be held of his deliberately omitting to record their respective statements, as he intended to suo moto rear a false case against the accused.
10. Be that as it may, even Raj Kumar, the purported eye witness to the occurrence when has not supported the version of the victim qua the road mishap though the Investigating Officer ascribes to him the role of an ocular witness thereto rather has disclosed in his recorded deposition on oath of his visiting the site of occurrence subsequent to its taking place thereat renders hence the genesis of the prosecution case anchored on his testimony to loose its force in its entirety also the ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...9...
factum of his reneging from his previous statement .
recorded in writing renders frail the enunciations in the apposite F.I.R. of his making a disclosure to the Investigating Officer qua the occurrence standing not witnessed by the aforesaid persons named by the victim of in the F.I.R whereupon the Investigating Officer was rt constrained to not solicit their participation in the apposite investigations. In sequel, it appears of the entire investigations held by the Investigating Officer concerned qua the ill fated road mishap being both slanted and skewed for falsely implicating the accused.
11. Even the preparation of site plan whereupon much reliance has been placed by both the Courts to concurrently record findings of conviction against the accused appears to stand prepared suo moto besides in an arbitrary fashion by the Investigating Officer even when the ill fated vehicle was unavailable at the site of occurrence. The inference of site plan comprised in Ext.PW-8/B standing prepared under the mere ipse dixit ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...10...
of the Investigating Officer stands anvilled upon the .
factum of PW-7 underlining in his deposition of when he alongwith his friends visited the site of occurrence, the vehicle driven by the accused having departed therefrom. Since the arrival of the Investigating Officer of at the site of occurrence was subsequent to the rt departure therefrom of the vehicle driven by the accused necessarily the depictions therein incriminating the accused respondent do not hold any efficacy.
12. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by both the Courts below suffers from a gross perversity and absurdity hence it can be held of both the Courts below in recording findings of conviction having committed a legal misdemeanor, inasmuch as theirs mis-
appreciating the evidence on record or theirs omitting to appreciate relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the ::: Downloaded on - 15/04/2017 20:41:24 :::HCHP ...11...
findings of conviction recorded by both the Courts below .
merit interference.
13. In view of the above discussion, I find merit in this petition, which is accordingly allowed and the judgements of conviction and sentence rendered by both of the Courts below are set-aside. Bail bonds are discharged.
rt
27th June, 2016 (Sureshwar Thakur)
™ Judge.
::: Downloaded on - 15/04/2017 20:41:24 :::HCHP