Himachal Pradesh High Court
Narotam Chand And Another vs State Of H.P on 17 December, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 581 of 2010.
Reserved on: 5th December , 2018.
.
Date of Decision: 17th December, 2018.
Narotam Chand and another .....Appellants.
Versus
State of H.P. ....Respondent.
Coram r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellants: Mr. Ajay Sharma, Advocate.
For the Respondent: Mr. Hemant Vaid and Mr. Desh Raj Thakur, Additional Advocate Generals.
_______________________________________________________ Sureshwar Thakur, Judge.
The instant appeal, is, directed by the convicts/ accused/appellant, against, the pronouncement made by the learned Special Judge, Hamirpur, H.P., upon Sessions Trial No.29 of 2009, whereunder, he convicted, besides imposed consequent sentence, upon, the convicts/accused/appellants, for theirs committing offences punishable under Section 506 of the IPC, and, ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 2 under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The facts relevant to decide the instant case .
are that on 16th May, 2009, at about 9.30 p.m., a telephonic information was given by Smt. Sudesh Kumari, Pradhan, Gram Panchayat, Tal at Police Station, Sadar Hamirpur to the effect that the accused had come to her house in an inebriated condition and were abusing her.
Such information was entered in the Rapat Roznamcha, and, the police party headed by H.C. Duni Chand, NO.24, left for the spot. After the police party reached the spot, H.C. Duni Chand, recorded statement of the complainant Smt. Sudesh Kumar. It was reported by her therein that on 16th May, at about 9.15 p.m., she was present alongwith her family members in her house. There is a path leading from the back side of her house. Accused Narotam Chand and Darnashi was going by that path and was calling out filthy abuses. Her husband asked him the reason for doing so. Upon it, accused Narotam Chand told her husband, "Chimbey Apni Chimbi Ko Pradhan Bana Rkha Hey".
Thereafter, accused Narotam Cahnd went away to his house calling out filthy abuses. It was also reported that after some time Narotam Chand and his brother, Sunil ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 3 Kumar came in their courtyard and both were under the influence of liquor at that time. Narotam Chand was carrying a Danda and Sunil Kumar was armed with Darat.
.
Her husband told them that they were under the influence of liquor and that they should go back to their house.
However, both of them said to the complainant, "Sali Randi, Chimbi Jat Ki, Apney Aap ko Bari Pradhan Banti Hey, Tujhey to Pradhan Giri Karna Sikha Dengey". Thereafter they started hurling out threats to them and told the complainant that she has one son, who will be finished by them on the next day, and they would also lay her husband to asleep, and she would become a widow. They continued calling out filthy abuses and threatening to kill them. Upon hearing noise, Gian Chand, Rangha Ram and Smt. Chanchlo Devi came to the spot and in their presence also both the accused hurled out threats to kill them and continued calling her "Chimbi" and abused her in the name of caste in order to humiliate her. Upon the aforesaid statement, FIR was registered in Police Station.
The police, thereafter carried and concluded all the investigation(s) formalities.
3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report, ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 4 under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court.
4. The accused/appellants herein stood charged, .
by the learned trial Court, for, theirs committing offences, punishable under Sections 451, 506 read with Section 34 of the IPC, and, Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In proof of the prosecution case, the prosecution examined 14 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 learned trial Court, wherein, 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/ appellants herein, for theirs hence committing the aforesaid offences.
6. The appellants herein/accused, stand aggrieved, by the findings of conviction, recorded, by the learned trial Court. The learned counsel appearing, for, the appellants herein/accused, has concertedly and vigorously contended, qua the findings of conviction, ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 5 recorded by the learned trial Court, standing not, based on a proper appreciation 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 jurisdiction, and, theirs being 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, rather 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. PW-1, Joginder Singh, has, in his testification borne in his examination-in-chief, made, a communication hence bearing concurrence, with, his previous statement recorded in writing. He has thereunder ascribed qua the accused, hence, hurling abuses upon the victim, and, also echoed therein qua accused Sunil Kumar alias Sato ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 6 wielding a darat in his hand, and, besides echoed qua co-
accused Narotam, wielding a bamboo stick, and, theirs meteing threats to the life of the victim. Even though, in .
his cross-examination, conducted by the learned defence counsel, he has made minimal improvements therefrom,
(i) comprised in his testifying qua his disclosing to the police, that he, at the relevant time, was closing the tap, echoing whereof, does not occur, in his previous statement recorded in writing, (ii) also though, he has proceeded to testify qua his making an echoing in his previous statement recorded, in writing qua the accused arriving, upto, the gate of his house, echoing whereof, also does not occur, in his previous statement recorded in writing, (iii) besides, he has also made a testification that the accused threatening, that, his wife should wipe out "sindoor" from her forehead because she had become a widow, testification whereof, also is not borne in his previous statement embodied in EX.DA, (iv) yet the afore improvements, made by PW-1 in his testification, borne in his examination-in-chief, vis-a-vis, Ex.DA, are obviously minimal, and, do not erode the substratum, of, the charge framed against the accused. Consequently, the afore improvements are discardable, conspicuously, when ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 7 reiteratedly, the substratum of the charge, stands testified by PW-1, rather with apparent inter se visible harmony, vis-a-vis, his his testification borne in his examination-in-
.
chief, and, his testification borne in his cross-examination, thereupon, credence is to be meted to his testification.
10. The victim, stepped into the witness box as PW-
2, and, has, in her examination-in-chief, testified in concurrence, with her previous statement, borne in Ex.PW2/A, and, has also proceeded to identify darat, Ex.P-
1, as stood shown to her, during, the course of her deposition being recorded in court, hence to comprise the relevant weapon of offence, seized through recovery memo, borne in Ex.PW2/B, (i) besides also during the course of her deposition being recorded, she, identified bamboo stick, to also comprise the relevant weapon, of offence, seized under memo Ex.PW2/C, (ii) and, with her deposition borne in her cross-examination, not, unraveling qua hers either improving or embellishing, upon, her previous statement borne in Ex.PW2/A, thereupon, credence is to be meted to her testification, (iii) significantly, when her deposition corroborates the testification rendered qua the occurrence, by PW-1.
::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 811. PW-3, likewise has rendered, a, testification qua the ill-fated occurrence, bereft of any stain of improvements or embellishments, vis-a-vis, his previous .
statement recorded in writing, nor he has contradicted the testification (I) qua the occurrence rendered by both PW-1 and by PW-2. It appears that this witness was declared hostile, given his in his examination-in-chief, rendering an echoing qua the ill-fated occurrence, taking place during the winter season, whereas, the incident rather taking place in the month of May, whereat hence winter season, does not befall, (ii) and, thereafter the learned PP was permitted to cross-examine the afore witness. In his cross-
examination, by the learned PP, he has feigned ignorance qua the occurrence taking place, on 16.5.2009, and, thereafter, he has clarified that it was about 9 or 9.30 p.m. However, merely on anvil of his feigning ignorance qua the afore factum, it yet cannot be concluded that he has rendered, an invented version qua the occurrence, given, his clarifying that he used quilt for sleeping throughout the year, (iii) thereupon, his making, a, testification qua the incident taking place in the winter season, whereas, his further in his cross-examination, conducted by the learned PP, hence, testifying qua his using fan at the relevant time, ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 9 AND, his not using fan in the winter season, (iv) thereupon, the echoing made by him, in his examination-in-chief, qua the incident taking place, during, winter season, is, .
rendered insignificant, more so, when he has further testified, qua only one ill-fated occurrence hence taking place against victim, one Sudesh Kumari. Furthermore, with the learned defence counsel, during, the course of his conducting, the, cross-examination of PW-3 hence not meteing any suggestion, vis-a-vis, him, rather containing any echoing qua his being an invented witness qua the occurrence, (v) contrarily, with the learned defence counsel, meteing a suggestion to him, qua his statement standing recorded twice, initially on the day of occurrence, and, thereafter on the day of recovery, (vi) thereupon, hence, therefrom an inevitable sequel, rather ensues, qua the defence, acquiescing, vis-a-vis, the fact qua PW-3, making, a, previous statement qua the occurrence, to the Investigating Officer, and, it being in respect of the charge,
(vii) whereupon, it is to be concluded qua the testification borne in the examination-in-chief of PW-3, being readable qua the incident, embodied in the charge, (viii) and, conspicuously when he, has, for all aforestated reasons, clarified, that, the relevant occurrence, occurred in the ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 10 month of may, and only one penal misdemeanor, being, perpetrated against the victim, and, thereupon, it stands concluded qua his meteing corroboration, to, the .
testifications of PW-1, and, of PW-2.
12. Moreover, corroboration to the testifications of PW-1, PW-2, and, PW-3, is, meted by PW-4, who in his testification, borne in his examination-in-chief, has rendered a version qua the occurrence, bereft of any gross improvements or embellishments, vis-a-vis, his previous statement recorded in writing, (a) thereupon, with inter se corroboration being meted by all the ocular witnesses to the occurrence, rather facilitates erection, of, a firm inference qua the charges being proven against the accused, conspicuously also with PW-7 rendering a testification, vis-a-vis, the occurrence, hence, in absolute concurrence thereof.
13. Be that as it may, PW-9, who visited the spot immediately after receiving a telephonic information, and, who on reaching the spot hence recorded the statement of the complainant, borne in Ex.PW2/A, (a) has also, in his examination-in-chief rendered a testification qua his, thereat observing qua the accused being under the influence of liquor, and, theirs also manhandling him.
::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 11Furthermore, with his making a communication, in his examination-in-chief, that, given the the accused causing breach of peace, hence, his arresting them under Sections .
107 and 151 of the Cr.P.C., and, thereafter theirs being brought to the police station, and, being produced before the S.D.M., Hamirpur, on 17.5.2009, (b) testification whereof, borne in his examination-in-chief when remains uneroded of its efficacy, even during the course of his being subjected to an incisive cross-examination by the learned defence counsel, hence entails meteing, of, absolute sactity thereto.
14. An added momentum to the afore inference, is, mobilised by the Investigating Officer concerned, rendering a forthright testification, vis-a-vis, the validity, of drawing, of, memos, borne in Ex.PW2/B, and, in Ex.PW2/C, whereunder Ex.P-1 (darat) and Ex.P-2 (bamboo stick) hence stood respectively recovered, and, memos whereof also stand proven by PW-2, and, by PW-3. An inference qua adduction of cogent proof, in, respect of valid drawings thereof, by the Investigating Officer concerned, and, vis-a-vis, the authenticity, of, all the recitals borne therein, (a) is garnered by the memos being signed by PW-3, and, the accused, and, further Sudesh ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 12 Kumar also proving, qua hers signing, the, afore memos,
(b) besides hers identifying the afore exhibits, exhibits whereof stood shown to her, during, the course of her .
recording, her examination-in-chief, (c) preeminently also when no efficacious cross-examination is conducted, upon, either PW-2, and, PW-3, apparently qua the afore memos being not efficaciously drawn, or theirs appending signatures on blank papers, or theirs signing the afore memos, under,pressure exerted, upon, them by the Investigating Officer concerned, (d) nor with the accused denying the existence of their signatures thereon, hence, begets a sequel qua, hence efficacious proof being adduced, vis-a-vis, the valid drawing, of, the afore memos, and, qua recoveries of weapons of offence mentioned therein, hence, being validly effectuated thereunder, AND, qua hence corroboration, being meted to the testifications, rendered by the ocular witnesses to the occurrence.
15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, also does not suffer from any gross ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP 13 perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record.
16. Consequently, there is no merit in the instant .
appeal, and, it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) Judge 17th December, 2018.
(jai) ::: Downloaded on - 20/12/2018 22:55:24 :::HCHP