Himachal Pradesh High Court
Narain Dass & Anr vs State Of H.P on 10 April, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 87 of 2011.
Reserved on: 26th March, 2018.
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Date of Decision: 10th April, 2018.
Narain Dass & Anr. .....Petitioners.
Versus
State of H.P. ....Respondent.
Coram r
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Lakshay Thakur, Advocate.
For the Respondent: Mr. Hemant Vaid, Addl.
Advocate General with Mr. Yudhveer Singh Thakur, Dy.
Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge.
The instant Criminal Revision Petition stands directed by the petitioners/accused, against, the judgment rendered on 31.03.2011, by the learned Addl. Sessions Judge, Mandi, H.P. in Criminal Appeal No. 24/2006, whereby, he affirmed the judgement of ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 2 conviction and sentence recorded, upon, the accused/petitioners herein, by the learned trial Court.
2. The facts relevant to decide the instant case .
are that PW-1 Surjan Singh had gone to attend marriage to village Pali on 11.02.2004. He was returning home on 12.02.2004 alongwith his wife Meera, his children, his brother-in-law Hans Raj (PW-3) and sister-in-law Mathra Devi (PW-7). When he reached at Rao at 5.30 PM, accused Narian Dass and Nand Lal came towards him. Accused Narian stopped the complainant and inquired as to why the complainant had maintained, relations with his sister-
in-law Maheshru. Narian took out a knife and inflicted an injury on the abdomen of the complainant. The other accused Nand Lal caught the complainant by his arms. He shouted for help on which Meera, Hans Raj and Mathara Devi came on the spot. The accused also gave beatings to Hans Raj and ran away from the spot. They also threatened the complainant. The matter was reported to police. FIR Ex. PW2/A was registered in the Police Station. Thereafter the police ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 3 carried investigations in the case and completed the same.
3. On conclusion of the investigation, into the .
offences, 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. The accused/petitioners herein stood charged by rthe learned trial Court for theirs committing offences punishable under Sections 341, 323, 324, 506 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 respective statement(s) of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court wherein each of 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 conviction upon the accused/petitioners herein for theirs committing offences punishable under Sections 323, ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 4 324, 506 read with Section 34 of the IPC. In an appeal preferred therefrom by the accused/petitioners herein before the learned Addl. Sessions Judge, Mandi, H.P, .
the latter affirmed the apposite findings of conviction and sentence recorded in the judgment pronounced by the learned trial Court.
6. The the petitioners herein/accused stand aggrieved by the findings recorded by the learned Addl. Sessions Judge, Mandi in affirmation to the judgment of conviction recorded against them by the learned trial Court. The learned counsel appearing for the petitioners herein/accused has concertedly and vigorously contended qua the findings of conviction, recorded by the learned Addl. Sessions Judge, Mandi standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by him, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal.
::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 57. On the other hand, the learned Addl.
Advocate General has with considerable force and vigour, contended qua the findings of conviction .
recorded by the learned Addl. Sessions Judge standing based on a mature and balanced appreciation by him 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. In respect of the offences, borne, in Sections 341, 323, 324, 506 read with Section 34 of the IPC, an apposite FIR, borne in Ex.PW1/A, was lodged at the Police Station Balh. Therein, there is an ascription vis-
a-vis accused Narian Dass, qua the latter delivering a blow with knife Ex.P-4, upon the left side of stomach, of the complainant/injured. In sequel thereto, blood started oozing therefrom, whereupon, blood stains hence gathered on the clothes of the victim. Co-
accused Nand Lal, is alleged (a) to aid and abet, and, also share a joint mens rea, with accused Narian Dass, ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 6 in the latter inflicting a knife blow, on, the left side of the stomach of the complainant. (b) Mens rea whereof, is alleged, to be comprised, in his act of .
clutching the complainant. In proof of the prosecution case, the prosecution led into the witness box Surjan Singh, Hans Raj and Mathara Devi. Surjan Singh, the complainant while testifying as PW-1, has, in his testification, rendered a version holding a complete harmony, and, unison with his previous statement, borne in Ex.PW1/A, (c) besides a whole some reading, of his testification, omits, to make any graphic disclosure(s) of his either embellishing or improving, upon, his previous statement recorded in writing, (d) nor also it makes any vivid disclosure, of, his contradicting, his apt previous statement recorded in writing. Consequently, when he deposes in absolute concurrence, with, his previous version, borne in Ex.PW1/A, hence his testification enjoys creditworthiness. Corroboration, to the testification of PW-1, is, meted by Hans Raj, who has testified as PW-
3, and, who in his testification, has meted omnibus corroboration, to the testification, qua the occurrence, ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 7 rendered by PW-1. Even though in his testification, he has echoed (e) of his being behind a curve, and, his being disabled to witness, qua what was happening .
ahead of him, (f) yet therefrom, no capitalization, can be derived by the accused, especially with his also suffering injuries, on his person, evident from proven apposite MLC, borne in Ex.PW5/B. Moreover, the further effect of PW-3 also sustaining injuries, in the relevant assault, and, with the defence, not espousing, of persons other than the accused, being also available at the site of occurrence, (g) thereupon, even if assumingly, PW-3 Hans Raj, arrived at the site of occurrence, with an iota of delay, since its eruption, hence, with his naturally noticing continuation, of the perpetration, of assault by the accused, upon PW-1 Surjan Singh, (h) thereupon, any stray acquiescence, by PW-3 of his being behind a curve, and, hence his being disabled, to witness what was happening ahead of him, does not discount the factum of his presence, at the site of occurrence, (i) thereupon, an inference is erectable, of his arrival at the site of occurrence though being slightly delayed, yet delay whereof not ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 8 benumbing, his testification, of, upon his arrival at the site of occurrence, hence his witnessing the assault perpetrated, by the accused upon the complainant.
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More so, when he also sustained injuries upon his person. PW-7, Mathara Devi, the other eye witness, to the occurrence has also lent corroboration, to the testification of PW-1, and, vis-a-vis the testification, of, PW-3. With the eye witnesses to the occurrence, meteing inter r se corroboration vis-a-vis their respective testifications, (j) pointedly bereft of any inter se or intra se contradiction(s), thereupon, credence is to be imputed vis-a-vis their respective testifications, dehors the factum of theirs, being purported interested witness(es), and, also dehors the factum, of any purported, inimicality, occurring inter se Mathara Devi and the accused, arising, from hers purportedly lodging a case, of sexual harassment against the accused, (k) predominantly when their respective testifications, pointedly unfold, the presence of the accused, at the site of occurrence, and, also pointedly unfold, their respective incriminatory role(s) in the relevant assault. Even if, ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 9 Mathara Devi, in contradistinctivity, with the complainant, who rather attributes, the role of infliction of knife blow, on the stomach of the .
complainant vis-a-vis accused No.1, has hence ascribed the aforesaid incriminatory role vis-a-vis accused No.2, (l) yet when both the accused are twins, hence given their apparent similarities in resemblance(s) or in characteristic physical features, she appears to be hence led to make the aforesaid contradistinction, (m) hence, the aforesaid contradistinction, occurring inter se PW-1, and, PW-7 is rendered insignificant nor therefrom, the testification(s) either of PW-1, and, of, PW-7, are rendered bereft of credence. The testifications, of ocular witnesses to the occurrence, when for the reasons aforestated, are rendered creditworthy, and, when the doctor concerned, who carried the medical examination of PW-1, and, PW-3, when testifying as PW-5, hence, has proven the injuries observed by him, to be respectively, occurring on the persons of PW-1, and, of PW-3, injuries whereof, find reflections, in Ex.PW5/A and in Ex.PW5/B, and, when exhibits ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 10 aforesaid, stand proven by him, (n) besides when he unequivocally, depose(s), of the injuries noticed by him to be occurring on the person of PW-1, being .
causable by knife, Ex.P-4, and, his dispelling the suggestion, of theirs being self inflicted, besides, his connecting the time, of, infliction of injuries vis-a-vis the time, of occurrence borne in the apposite FIR, hence, the testifications of ocular witnesses vis-a-vis the reported time of occurrence, also are hence meted corroboration by PW-5.
10. Further corroboration to the testification, of ocular witnesses, as also to the testification of PW-5, is evidently meted by Ex.PW1/B, whereunder clothes, of the complainant, clothes whereof gathered stains of blood, as oozed, from the apposite injuries caused with user of knife, by accused Narian Dass, stood hence recovered. Witness thereto one Prakash Chand, while testifying, as PW-2 has efficaciously proven contents thereof, (i) and, with the learned defence counsel, while subjecting him to cross-examination, omitting to mete apposite suggestion(s) vis-a-vis the clothes recovered, under Ex.PW1/B, not appertaining, ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 11 to the complainant rather recovery thereof being invented, (ii) hence, it has to be concluded of recovery(ies), of blood stained clothes, of the .
complainant being efficaciously effectuated. Even Ex.PW4/A whereunder recovery of knife, Ex.P-4, was, effectuated by the Investigating Officer, during, the course of his subjecting him, to, custodial interrogation, (iii) does, on its incisive reading, unfold, of accused Narain Dass, handing over knife, Ex.P-4, to the Investigating Officer concerned, (iv) consequently, when, during the course of the accused being subjected to custodial interrogation, by the Investigating Officer concerned, he was carrying with him knife, Ex.P-4, (v) thereupon, when evidently he was hence carrying, Ex.P-4 with him, and, hence with its not being obviously hidden nor camouflaged, (vi) whereas, in the latter scenario, alone it was imperative, for the Investigating Officer concerned, to record his disclosure statement, in respect of its place of keeping, and, hiding by him, and thereafter to effectuate, its recovery, (vii) necessarily, when hence, during, the course of Narain Dass being held to ::: Downloaded on - 17/04/2018 22:53:21 :::HCHP 12 custodial interrogation, it hence, stood carried by him,
(viii) thereupon, with his thereat producing, knife Ex.P-
4, before the Investigating Officer Concerned, in .
sequel the non recording, of his, apposite disclosure statement, by the Investigating Officer concerned, would neither vitiate nor render legally infirm the handing over, of weapon of offence, by accused Narian Dass, to the Investigating Officer, in respect whereof Ex.PW4/A stood efficaciously prepared nor its corroborative connecting vigour vis-a-vis ocular evidence, can hence be blunted. Even though witnesses thereto, namely Bhadar Singh and Rakesh Kumar, resiled, from their previous statements recorded in writing. However, when both admitted their respective signatures, on Ex.PW4/A, thereupon the factum of theirs admitting their signatures, on Ex.PW4/B cannot be overlooked, (ix) whereupon, they, as mandated by the provisions of Section 91 and 92 of the Indian Evidence Act, stood, interdicted, besides forbidden, to depose in variance therefrom, rather with theirs being interdicted, by the statutory mandate engrafted, in the afore-referred apposite ::: Downloaded on - 17/04/2018 22:53:22 :::HCHP 13 provisions of the Indian Evidence Act, reiteratedly hence they by admitting their signatures existing thereon, hence impute conclusive proof qua all the .
recitals, occurring therein, (x) significantly on occurrence of unflinching evidence qua their signatures existing thereon, irrefragable evidence whereof stands evinced, by theirs admitting, the prime factum of the apposite memo, rather holding their signatures, hence, when their apposite admission, sequelly statutorily belittles, the effect of theirs deposing orally in variance or in detraction thereto,
(xi) naturally when they rather emphatically prove the recitals comprised in the apposite memo, thereupon it is neither appropriate nor tenable for this Court, to conclude of the recorded recitals borne in Ex.PW4/A, holding no evidentiary clout nor it is legally apt for this Court, to outweigh, the creditworthiness of the testimonies, of ocular witnesses.
11. For the reasons which have been recorded hereinabove, this Court holds that the learned Addl.
Sessions Judge concerned, as also, the learned trial Court, have appraised the entire evidence on record in ::: Downloaded on - 17/04/2018 22:53:22 :::HCHP 14 a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned Courts below does not suffer from any gross perversity .
or absurdity of mis-appreciation and non appreciation of germane evidence on record.
12. Consequently, the instant revision petition is dismissed. In sequel, the judgment(s) impugned hereat are maintained and affirmed. All pending applications also stand disposed of. The learned trial Court is directed to forthwith execute the sentence imposed upon the accused/petitioners herein.
Records be sent back forthwith.
(Sureshwar Thakur) 10 th April, 2018. Judge.
(jai) ::: Downloaded on - 17/04/2018 22:53:22 :::HCHP