Himachal Pradesh High Court
Vijay Kumar And Others vs State Of H.P on 23 November, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 243 of 2006.
Reserved on : 15th November, 2017.
.
Date of Decision: 23rd November, 2017.
Vijay Kumar and others .....Appellants.
Versus
State of H.P. ....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the Appellants: Mr. Ajay Kumar, Senior Advocate with Mr. Dheeraj Vashist, Advocate.
For the Respondent: Mr. Vivek Singh Attri, Addl.
A.G. Sureshwar Thakur, Judge.
The instant appeal stands directed against the judgment rendered on 29.07.2006 by the learned Sessions Judge, Hamirpur, H.P. in Sessions trial No.11 of 2005, whereby, the learned trial Judge convicted accused Vijay Kumar and accused Saneh Lata for ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 2 theirs committing offences punishable under Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and under Section 457 .
of the IPC, whereas, he convicted accused Kishori Lal and accused Husan Kumar for theirs committing an offence punishable under Section 457 of the IPC.
Consequently, accused Vijay Kumar and accused Saneh Lata are sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.8000/- each, for commission of an offence punishable under Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In default of payment of fine, they were sentenced to undergo simple imprisonment for a period of one year each. Further accused Vijay Kumar, Saneh Lata, Kishori Lal and Husan Kumar are sentenced to undergo rigorous imprisonment, for a period of three years each and to pay a fine of Rs.10,000/- each, for theirs committing an offence punishable under Section 457 of the IPC. In default of payment of fine amount, all the convicts are further sentenced to undergo simple imprisonment for a ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 3 period of one year each. All the sentences were ordered to run concurrently.
2. Briefly stated the facts of the case are that .
complainant Om Parkash moved a complaint to the Superintendent of Police, Hamirpur, H.P. to initiate criminal proceedings against the accused persons disclosing therein that he is a member of scheduled caste and was running a shop of photography at Nadaun in a rented shop, shop whereof owned by accused Saneh Lata, since 1984 on payment of rent of Rs.300/- per month. On 13.9.2003, he received a letter from accused Vijay Kumar, wherein, he was addressed by his caste and threatened that the shop in question would be got vacated. Sensing some foul play, he rushed to the court and filed a suit for injunction against Vijay Kumar and Saneh Lata. In the said suit, they were directed by the court not to dispossess him from the shop forcibly. On 19.9.2003, summons of the aforesaid civil suit were duly served upon Vijay Kumar and Saneh Lata, but on the same night, at about 1.30 a.m., accused Vijay Kumar tried to break the lock of the shop, but PW-1, receiving information of the said ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 4 illegal design, rang up to PW-17 Sh. Mandan Lal, the then Dy. S.P, and requested him to do something to protect his property. On instructions of PW-17, the .
police of P.S. Nadaun, visited the shop in question, however, accused Vijay Kumar along with 5-6 persons ran away from the site. ON 20.9.20-03, he moved an application qua the said incident in Police Station, Nadaun, but no action was taken by the police against the accused persons. On 21.9.2003, the shop in question was opened by him only for some time, because of Sunday, but at about 9.00 pm, when he was away from his shop at his residence, he came to know that accused Vijay Kumar and Saneh Lata along with 8-10 persons, including accused Kashmiri Lal and Husan Kumar, in connivance with each other broke the lock and threw his belongings on the road. He rushed to the police station and lodged the report. On the instructions of Station House Officer the then MHC started reducing his statement in writing but when he disclosed that Rs.13,000/- in cash and two video Cameras, two Cameras and Cameras of still photography were missing and his forcible ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 5 dispossession amounted to atrocities on scheduled castes, the SHO, Hari Paul Saini instructed the MHC not to record FIR and refused to register the case.
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The SHO asked him to visit the police station on the following day and report the matter to Dy. S.P., Hamirpur, who would visit the police station, but on the following day, Dy. S.P. did not visit the police station. The local police including SHO, Hari Paul Saini were hand in gloves with accused Vijay Kumar and Saneh Lata and with their connivance, the accused committed the said offences and on the basis of said averments, the complainant prayed for action. The S.P. vide endorsement Ex.PW17/A referred the said complaint to PW-17 Dy. S.P., Headquarter to personally enquire into the matter and report. PW-17 Madan Lal accordingly enquired into the matter and submitted his report Ex.PW17/B. Vide his inquiry report, PW-17 found that accused Vijay Kumar and accused Saneh Lata harassed PW-1 on the basis of scheduled caste and forcibly dispossessed him therefrom the shop. On the basis of said inquiry report, the Superintendent of Police vide order dated 22.1.2003, ordered the ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 6 registration of the FIR in Police Station, Nadaun and after such registration of the case directed Mohinder Singh, Dy. S.P. , Sub Division Barsar to carry .
investigation of the case, as a result of which FIR Ex.pw1/L of 22.10.2003 came to be recorded in Police Station, Nadaun and investigation ensued.
3. On conclusion of investigation(s), into the offence(s), allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court.
4. Accused Vijay Kumar and accused Saneh Lata, stood charged by the learned trial Court, for theirs committing offences punishable under Sections 3(1)(v) and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and Sections 457, 380 and 427 of the IPC read with Section 34 of the IPC, whereas, accused Kashmiri Lal and accused Husan Kumar stood charged, by the learned trial Court, for theirs committing offences punishable under Sections 457, 380 and 427 of the IPC read with Section 34 of the IPC. In proof of its case, ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 7 the prosecution examined 17 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal .
Procedure was recorded by the learned trial Court, wherein, they claimed innocence and pleaded false implication in the case. In their defence, the accused examined three witnesses besides placed reliance upon various documents.
5. On an appraisal of the evidence existing on record, the learned trial Court, recorded findings of conviction against the accuseds/appellants herein.
6. The appellants/convicts stand aggrieved by the judgment of conviction recorded against him by the learned trial Court. The learned counsel appearing for the appellants/convicts has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court, being not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-
appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 8 jurisdiction and theirs standing replaced by findings of acquittal.
7. On the other hand, the learned Additional .
Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court standing based on a mature and balanced appreciation, by it, of the evidence on record and theirs not necessitating any 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.
9. Uncontrovertedly, accused Saneh Lata inducted complainant Om Prakash, as a tenant in the premises owned by her, premises whereof stand located at Nadaun, District Himirpur. The induction of Om Prakash as a tenant occurred in the year 1984.
The rent per mensem as contracted inter se both is comprised in a sum of Rs.300/-.
10. Apparently, each of the accused are respectively charged, in respect of an incident which occurred, on 21.09.2003, (i) whereat the accused are ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 9 alleged, to, with theirs holding a common intention, for, unlawfully depriving, the complainant, from his evident possession of the shop in question, hence, .
break open its lock whereafter, they are alleged to throw his belongings onto the road. However, the occurrence of 21.09.2003, did not take place in the presence of the complainant, rather when he was away from his shop, the alleged charged occurrence took place also in respect thereto, he, obviously stood apprised by some persons. However, in the complaint, the name(s) of the person(s), who apprised him, of the alleged charged occurrence, remains unrecited. Also the names, of, those persons, who testified in court in respect, of, the offences, in respect whereof the accused stood charged, and stood convicted also reiteratedly remained visibly unmentioned in the apposite FIR borne in Ex.PW1/L. However, the learned Sessions judge, Hamirpur, did not purvey any apposite therewith leverage vis-a-vis the defence, (i) merely, on the ground, of, the FIR being not enjoined, to, embody encyclopedic details, of, the entire incident nor it being enjoined to carry, ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 10 the names of all the prosecution witnesses concerned.
However, the aforesaid reason assigned by the learned Sessions Judge, for irrevering the factum of .
the FIR, not, echoing the names of the prosecution witnesses, appears t be a specious reason given (a) even if, the learned Sessions Judge, has aptly concluded, of, the FIR being not enjoined, to disclose encyclopedic details, of the entire genesis of the occurrence also when minimal detraction(s) therefrom by the PWs concerned, are permissible, (b) yet when the recitals occurring in Ex.PW1/E, appertain to an incident of 21.09.2003, incident whereof was not personally witnessed by the complainant, rather in respect thereto, he was purveyed information by certain persons, (c) thereupon, he was enjoined, to echo in the apposite FIR, the names of all those persons, who had purveyed him information qua the offences, in respect whereof, the accused stood charged besides convicted, (d) especially when the occurrence, in, the FIR, of, names of those persons, who apprised the complainant qua the commission of the charged offences by the accused, was imperative, ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 11 for (e) hence ridding the apposite recitals borne in the apposite FIR, from any infirmity, of theirs being inadmissible in evidence, theirs comprising hear say .
evidence, (f) also for rendering them capacitated to testify in respect thereto. Consequently, when the names of the persons, who revealed the charged incident vis-a-vis the accused remained unrecited in the apposite FIR, thereupon, the testification(s) rendered by the apposite PWs concerned, for hence lending proof vis-a-vis the charge framed against the accused, (g) is hence contrarily amenable, to, an inference of hence their testimonies being discardable, given theirs emanating from invented besides concocted witnesses, (h) rather than the learned Sessions Judge, merely, for reason, of, the FIR being not enjoined, to, disclose encyclopedic details of the genesis of the occurrence, hence imputing credence vis-a-vis their respective testimonies. In aftermath, the learned Sessions Judge, in imputing creditworthiness, to the testifications of the prosecution witnesses, whose names remained undisclosed in the FIR, garners an inference, (i) of the ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 12 prosecution, merely, for untenably sustaining the charge against the accused, its fabricating evidence against the accused, (j) also thereupon the entire .
genesis of the prosecution version comprised in the apposite FIR, being ridden with a pervasive vice of falsity, (k) rendering its contents to be unbelievable also rendering testifications in consonance therewith deposed by PWs to stand imbued with an alike stain.
11. The learned Sessions Judge has disimputed credence to Ex. Dx, exhibit whereof stood tendered into evidence by the accused, during the course, of proceedings, drawn under Section 313, Cr.P.C. At the time of its tendering into evidence by the accused, no, protest emanated from the prosecution, qua its adduction into evidence by the accused nor the authenticity, of the signatures of the complainant as occur thereon, stood disputed. In sequel thereto, it was imperative for the learned Sessions Judge, to, draw a conclusion, qua even if Ex. Dx, was a photo copy of the original besides when it emanated from the custody of the accused, of, (a) it being proven in accordance with law, especially when embossing of ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 13 exhibition mark thereon, hence, occurred in the presence of the prosecutor concerned. (b) Moreover, disimputation of credence to Ex. Dx, despite, .
occurrence of unveilings therein, of, possession of the disputed premises standing delivered by the complainant, on 14.09.2003 to accused Saneh Lata,
(c) whereupon, rather the allegations constituted in complaint borne in Ex. PW1/E, qua the relevant occurrence purportedly r taking place subsequent thereto, whereat the complainant stood forcibly dispossessed from the shop in question by the accused, hence obviously lose their tenacity.
However, the learned Sessions Judge concerned, in disimputing credence thereto, has referred to certain rent receipts comprised in Exts. PW1/F to Ex.PW1/J, for his hence, making conclusions of thereupon the recitals borne therein, of co-accused Saneh Lata waiving rent, in respect of the disputed premises, being falsified. Even if, the rent receipts are personificatory, of, rent being liquidated by the complainant vis-a-vis accused Saneh Lata, nonetheless, on anvil thereto, it was not apt, for the ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 14 learned Sessions Judge concerned, to, rid the recitals borne in Ex. Dx, of their apposite truth, (i) unless evidence stood adduced by the complainant, .
comprised in apposite receipts appertaining from 1984 upto the date of filing of the FIR, with revelations therein, of, throughout since then upto now, his liquidating the rent vis-a-vis the suit premises.
Contrarily, non adduction thereof, did not purvey any leverage, to, the learned Sessions Judge concerned, to, on anvil of only certain rent receipts appertaining to a minimal period, hence, conclude qua thereupon the recitals occurring therein, of co-accused Saneh Lata, waiving the entire rent vis-a-vis the shop in question, not warranting any imputation of credence thereon.
12. Furthermore, the factum of falsity, gripping the incident of 21.09.2003 is also borne, from, the factum of the complainant, in his suit instituted before the learned Civil Court concerned, suit whereof bears Civil Suit No.245 of 2003, making bald, uncertain and imprecise allegations, of the accused on 21.09.2003, taking forcible possession of the suit premises, (i) ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 15 wherein also the complainant Om Prakash, has not, made any echoings of the aforesaid occurrence taking place, in his absence, whereas, his being apprised in .
respect thereto by some persons, (ii) whereas the aforesaid factum of the relevant occurrence, of 21.09.2003 taking place in his absence also his being apprised by certain persons, carries elucidation, in the apposite FIR, (iii) sequel, whereof is, of, with this Court hereinabove concluding, of, non mentioning, of the names of those persons, who witnessed the occurrence, by the complainant in the apposite FIR, rendering any testifications in respect thereto articulated by the prosecution witnesses concerned, to be infirm, when read in entwinement with non occurrence of any echoings in tandem therewith also in the apposite suit, (iii) thereupon constrains a conclusion, of, the complainant contriving, the incident of 21.09.2003, merely, for falsely implicating the accused.
13. Since, the learned Sessions Judge, has recorded finding of acquittal, upon the accused, for offences punishable under Sections 380 and 427 of ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 16 the IPC, besides when the complainant, has omitted to plead in his apposite suit, of his belongings occurring inside his shop being thrown on the road nor .
with his therein averring of cash worth Rs.13000/-
being stolen, (i) thereupon, the conclusions of acquittal, drawn, in respect thereto, by the learned Sessions Judge concerned, are rendered to be drawn aptly, (ii) also the non echoings therein of the aforesaid facts, r foments an inference of their withholdings in the apposite suit, whereas theirs occurring in the apposite FIR, renders them to be construable to be a sequel of contrivance deployed by the prosecution.
14. Be that as it may, DW-1 had proven Ex.PW1/B, supurdari nama, also occurrence of his signatures thereon were hence proven by him. He has deposed qua its preparation occurring on 14.09.2003, hence, in contemporaneity to the preparation of Ex.Dx. Thereupon, both the exhibits enjoin imputation of credence, rendering open room for an inference, of the incident of 21.09.2003 being contrived AND possession of the shop in question being delivered ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 17 earlier thereto by the complainant vis-a-vis accused Saneh Lata. Since, DW-1 was subjected to the ordeal of an exacting cross-examination, in course whereof .
DW-1 remained unscathed, thereupon, imputation of credence thereon was imperative, (i) whereas, in the learned Sessions Judge disimputing credence, to EX.PW1/B, (ii) merely, on anvil of the learned defence counsel, putting suggestions to PW-16, of its preparation occurring on 21.09.2003, has hence mis-
appraised, its probative vigour, (iii) given, even if, suggestion(s) contrary, to the evident preparation of Ex.PW1/B, stood, purveyed by the learned defence counsel, while cross-examining PW-16, any suggestion in detraction thereto, did not warrant leveraging of any inference, qua hence the preparation of Ex.PW1/B evidently reflected therein, to be occurring on 21.09.2003, being hence not proven.
15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not, appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by ::: Downloaded on - 29/11/2017 23:02:36 :::HCHP 18 the learned trial Court, suffers, from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record.
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16. Consequently, the instant appeal is allowed and the impugned judgment is quashed and set aside.
The accused is acquitted of the offences charged. Fine amount, if any, deposited by the accused before the learned trial Court be forthwith refunded to them.
Records be sent back henceforth.
(Sureshwar Thakur) 23 rd November, 2017. Judge.
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