Himachal Pradesh High Court
State Of H.P vs Of on 20 May, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.445 of 2009 .
Reserved on : 25.04.2016.
Decided on : 20/05/2016
State of H.P. .....Appellant.
Versus
of
Hari Dass Tanwar .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. M.A.Khan, Additional Advocate General.
For the Respondent: Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State of Himachal Pradesh against the impugned judgment rendered on 09.07.2009 by the learned Sessions Judge, Solan, in Sessions Trial No. 2-S/7 of 2008, whereby the learned trial 1 Whether reporters of the local papers may be allowed to see the judgment?
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Court acquitted the respondent (for short 'accused') for the .
offences charged.
2. The brief facts of the case are that on 11.4.2008 Anubhav Rai, a fighter pilot in Indian Air Force alongwith his of friends Sameer Yadav, Shanker Ghosh and Asheesh Chauhan had come from Ambala to Kasauli in a car No. DL-4CJ-5021 rt to spend their holidays there. At about 6.00 p.m. when they reached Garkhal Bazar near Kasauli, they found one Hyundai accent car in the middle of the road. Anubhav Rao who was driving the car asked the driver of Hyundai accent car to take it to one side in order to go ahead. On this the accused said they are buying grocery. As a bus was also coming from the opposite direction Anubhav Rao was not able to proceed further and at that stage some altercation took place between the driver of the Honda car and the accused. When the bus crossed Anubhav Rao took his car ahead and stopped the car at some distance and got down from it. From behind Hyundai accent car came in speed and went ahead. Anubhav ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...3...
Rao and his friends chased the said car but the accused did .
not stop and took the car on Parwanoo road. They followed the said car and at place Mashobra Anubhav Rao and his friends stopped the Hyundai car and Abubhav Rao and of Sameer Yadav asked the driver of the Hyundai accent car why he was not driving the car properly. Both Anubhav Rao and rt Sameer came down from the car and while they were talking with the driver of Hyundai accent car he is said to have taken the screw driver and hit Anubhav Rao in the stomach.
However, Anubhav Rao saved the blow which landed on the right leg on account of which Anubhav Rao fell on the road and when Sameer Yadav came to the rescue of his friends the car driver brandished the screw driver in all directions on account of which Sameer Yadav also sustained injury on the left arm. Thereafter, the car driver left towards Parwanoo and Anubhav Rao was brought to Military hospital at Kasauli from where he was referred to Command Hospital, Chandimandir.
Sameer Yadav stayed back at Kasauli for the treatment of his ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...4...
injury where he reported the matter to the police upon which a .
case under Sections 307 and 324 IPC came to be registered.
The other friends who accompanied Anubhav Rao to command Hospital but on reaching the said hospital, of Anubhav Rao was declared brought dead. He informed Sameer Yadav about the death at Kasauli. The police was rt accordingly informed who converted the case under Section 302 IPC. The police then visited the Command Hospital, Chandimandir, obtained the death certificate. They also prepared the inquest report and brought the dead body for post mortem which was conducted at ESI hospital Parwanoo and obtained the post mortem report. The blood was collected from the spot and from the car. Statements of the witnesses were recorded and the report from the Forensic Science Laboratory was also obtained with regard to the viscera and the blood collected from the spot and as per report human blood of group "B" was found on the lifted samples. After completing all codal formalities and on ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...5...
conclusion of the investigation into the offence, allegedly .
committed by the accused challan was prepared and filed in the Court.
3. The accused stood charged for his committing of offences punishable under Sections 304 Part I and 324 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
rt
4. In order to prove its case, the prosecution examined 18 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 chose to lead evidence in defence and examined five witnesses.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...6...
acquittal recorded by the learned trial Court 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 of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
rt
7. The learned senior counsel appearing for the respondent 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.
9. The ocular evidence qua the ill fated incident stands comprised in the testimonies of PW-1 and PW-2. An ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...7...
advertence thereto is imperative for gauging therefrom qua .
hence the prosecution version standing sustained or its suffering impairment. The genesis of the prosecution version stands propounded in the examination in chief of PW-1 who of therein enunciates the factum of on 11th April, 2008 the deceased Anubhav Rao, Shanker Gosh and Ashish Chauhan rt all common friends while proceeding for Kasauli in a car holding registration No. DL-4CJ-5021 owned by Shanker Gosh and which at the apposite time stood driven by deceased Anubhav Rao, on its arrival at about 6.00 p.m at Garkhal town theirs noticing a Hyundai Accent car standing parked on the road and a bus coming from the front side halting the smooth flow of traffic. Some time stood consumed for clearance of the road. Deceased Abubhav Rao on sighting the driver of Hyundai Accent Car occupying it, rolled down the window of his car and asked the driver of Hyundai car to take his vehicle aside for ensuring smooth flow of traffic yet the driver of the Hyundai car rudely replying of his ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...8...
parking his car thereat for making purchases. He proceeds to .
depose of deceased Anubhav Rao making an attempt to obtain a signal from the driver of the Hyundai Accent car for facilitating its passage ahead of the latter car and yet when of both cars started plying parallel to each other, the driver of the hyundai accent car upbraiding the deceased Anubhav Rao rt qua his being a tourist and that he should move as a tourist besides his hurling vituperatives at the deceased.
Furthermore thereat the driver of the hyundai accent car disembarked his vehicle and manhandled PW-1. At that stage many local people assembled and counseled PW-1 and other occupants of car DL-4CJ-5021 to move ahead by communicating to them of its driver being a local Advocate and his being a Wahiyat kind of person. They also advised PW-1 that they should not embroil themselves in any controversy with him. Anubhav Rao acceded to their request and proceeded ahead. He proceeds to depose that when subsequently at the end of the bazaar deceased Anubhav Rao ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...9...
and Shanker Gosh had stopped their car and proceeded to .
urinate, at that stage the very same hyundai accent car came at a fast speed whereby it almost took to run over Shanker Gosh and deceased Anubhav Rao yet they averted theirs of colliding with the vehicle driven by the accused. The hyundai accent driven by the accused sped away and the accused rt while proceeding ahead, had thereat made unwarranted gestures. Shanker Ghosh and deceased on occupying their car shared a common view that since the driver of the Hyundai accent car would have run them over they should chase him, qua which endeavour they proceed to embark, whereupon hence when PW-1 alongwith the deceased noticed the Hyundai accent car to stand halted in the bazaar they proceeded to talk to the accused. Deceased Anubhav Rao engaged himself in a talk with the accused whereas PW-1 was standing ahead of the deceased. Deceased Anubhav Rao apprised the accused that the manner in which he was driving his vehicle would have proved fatal to his life as also to ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...10...
the life of Shankar Ghosh. However, the accused again .
started hurling vituperatives at the deceased which sequelled eruption of a scuffle inter se the deceased and the accused.
PW-1 deposes of the driver of Hyundai accent car suddenly of brandishing at them a knife like sharp weapon. He proceeds to depose of the accused striking a blow with sharp knife like rt weapon at the abdomen of the deceased which blow was averted by the latter jumping behind yet in succession thereof thereafter the accused proceeded to deliver another blow at the deceased with a sharp knife like object which blow struck the right thigh of the deceased. Anubhav Rao is deposed by PW-1 to have fallen on his knees and when he went ahead the accused started brandishing his knife at him and he deposes of his receiving injuries on his arm and hand besides deposes of the accused striking with the aforesaid sharp knife like weapon the back side of the head of the deceased. The deceased stands deposed by him to have fallen on the ground. He also deposes of blood profusely oozing ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...11...
therefrom. Furthermore, he deposes his friends who occupied .
the Honda Car coming out therefrom and theirs getting perplexed on seeing the blood. There occurs a communication in his deposition of his clothes besides the of clothes of Shanker Ghosh and Ashish Chauhan standing stained with blood. Anubhav Rao was taken to Military rt Hospital in a Car. The doctor who attended upon Anubhav Rao apprised PW-1 of the condition of Anubhav Rao being serious and referred him to treatment to Command Hospital Chandimandir. He deposes of his receiving treatment at Military Hospital Kasauli whereat his wounds were stitched. In an ambulance Ashish Chauhan and two attendants took Anubhav Rao to Command Hospital, Chandigarh. The statement of PW-1 was recorded in Ext.PW-1/A whereon he deposes qua his signatures occurring thereon. PW-1 deposes qua him and Shanker Gosh staying at Kasauli where they had already made a booking at Air Force Station. By 9.30 PW-1 deposes of his receiving a telephonic call from ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...12...
Ashish Chauhan of Anubhav Rao succumbing to his injuries.
.
On the subsequent day at 9-10 in the morning PW-1 received a telephonic call from Dy.S.P.Pathaniya asking him to come to the police station for identification, whereupon PW-1, of Shanker Ghosh besides few personnel of Air Force proceeded to the police station. At the police station PW-1 identified the rt Hyundai accent vehicle to be the one which was involved in the incident. The accused was shown in the police station to PW-1 who identified him to be at the relevant time driving the Hyundai accent car. The vehicle occupied by PW-1 was inspected by the police whereupon the occurrence thereon of blood stains were apparently visible stains whereof of blood occurring thereon came to be lifted therefrom by the police.
PW-1 handed over his blood stained clothes besides the blood stained clothes of Anubhav Rao to the police which stood identified in Court by him to be the same.
10. A reading of the examination-in-chief of PW-1 makes an apparent disclosure of the aforesaid making ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...13...
minimal embellishments and improvements qua the incident .
viz.a.viz his previous statement recorded in writing. However, the effect of minimal improvements or embellishments occurring in his version qua the incident constituted in his of examination in chief vis.a.vis his previous statement yet render uneroded the genesis of the prosecution case of at the rt relevant site of occurrence, the accused on holding a sharp knife like object striking the deceased initially at the latters abdomen which striking thereat stood averted by the deceased by his retracing his steps whereupon he subsequently struck a blow of sharp knife like object on the right thigh of the deceased. Predominantly when PW-1 in his cross-examination manifests therein the factum of his disclosing in Ext.PW-1/A of on theirs occupying the side of the road, the Hyundai accent car arriving thereat from the rear while standing driven at a brazen speed by the accused and on its coming at close quarters with the car driven by the deceased sequelling theirs following the car, necessarily given ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...14...
the emanations of the factum aforesaid during the holding of .
cross-examination of PW-1 by the learned defence counsel, is perse personificatory of the defence conceding to the aforereferred factum. Moreover, with the learned defence of counsel putting an apposite suggestion to PW-1 of the deceased while driving DL-4CJ-5021 his following the rt Hyundai accent car driven by the accused, is a graphic display of the defence conceding of the accused standing embroiled with the deceased in an incident which occurred prior to the relevant incident leading hence the deceased to drive his vehicle in chase of the vehicle driven by the accused.
Obviously therefrom the identity of the Hyundai accent car upsurges besides of its driver the accused participating in the relevant incident undisguisedly surfaces. The learned defence counsel during his holding PW-1 to cross-examination had put apposite suggestions to him in consonance with the aforesaid echoings by him in tandem with his statement comprised in Ext.DA of the accused striking the abdomen of ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...15...
the deceased with an intention to kill him with a sharp knife .
like weapon, which strike stood averted by the deceased retracing his steps and which initial blow thereat by the accused with a sharp knife like weapon standing followed by of his striking another blow with it on the right leg of the deceased, suggestions whereof when evinced from him a rt response in the affirmative, is amplificatory of the defence conceding to the factum aforesaid as stand embodied in the suggestion aforesaid put by the defence to PW-1 while his standing subjecting to cross-examination besides of its acquiring tenacity. Moreover, with the learned defence counsel while subjecting PW-1 to cross-examination not halting thereat rather his proceeding beyond the aforesaid suggestions put further suggestion to PW-1 of after the deceased retracing his steps for averting the striking of his abdomen with a sharp knife like object by the accused, the accused proceeding to after opening the drivers side door tread upon the road whereat he proceeded to by striking his ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...16...
right thigh with a sharp knife like object inflicted injuries .
thereon suggestion whereof when evinced from him a response in the affirmative fillip an inference of hence the defence acquiescing to the factum aforesaid embodied of therein. Furthermore with blood stains occurring on the car occupied by the deceased and theirs standing collected by rt the Investigating Officer is also facilitative of an inference of the accused though while his occupying his car his proceeding to initially strike the abdomen of the deceased with a sharp knife like object striking whereat by him stood averted by the deceased by his retracing his steps and which abortive striking of the abdomen of the deceased by the accused with a sharp knife like object standing succeeded by his on his opening the driver side of the car treading on to the road whereupon the accused by his proceeding to chase both the deceased and PW-1 striking a blow with a sharp knife like object on the right thigh of the deceased besides with its user inflicting injuries on PW-1 in sequel hence the propagation of ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...17...
the defence encapsulated in the deposition of DW-3 of the .
deceased while the accused occupying his car attempting to strangulate him for averting whereof he struck a blow with a screw driver on the right thigh of the deceased standing of belittled of its vigour, with the consequential effect of the right of private defence as afforded by the learned trial Court rt standing bereft of any sinew.
11. Be that as it may, even if PW-1 had while recording his previous statement has described the weapon used by the accused to be a sharp knife like object, nonetheless even if he subsequently has rendered the precision description of the sharp knife like object of it being a screw driver Ext.P-9 recovered under memo Ext. PW-2/F necessarily hence screw driver Ext.P-9 is to be construed to be weapon used by the accused for inflicting a blow with it initially on the abdomen of the deceased whereafter he with it struck its blow on the right thigh of the deceased, as a corollary the effect of the aforesaid inference entwinement ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...18...
with further suggestions put by the learned defence counsel .
while holding PW-1 to cross-examination with an echoing therein of the factum of the accused for thwarting the imminent danger accruing to his life on the deceased of succeeding in strangulating him his proceeding to with a screw driver inflict blows with it on the person of the deceased rt fillip an invincible inference of the defence conceding to the factum of the accused using a screw driver for striking the person of the deceased merely to avert deceased Anubhav Rao begetting his demise by his succeeding in strangulating him besides also nurses an inference when the aforesaid apposite suggestions in portrayal of the penal misdemeanor attributed by the prosecution to the accused stands assayed by the defence to be benumbed by his resorting to it for obviating the sequel of his standing strangulated by the accused while stand carried in a portion other than the apt portion adverted to herein-above on analyses whereof an inference stands nailed of the defence portraying an acquiescence qua the facet aforesaid of hence theirs holding ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...19...
the effect of the projection of the said defence therein .
standing strived in a desultory besides in a mechanical fashion, unconnected with the sequence of evidence/events occurring much prior thereto, occurrence of events whereof of stand conceded by the defence. In other words when the said defence stood omitted to be put to PW-1 in chronology rt to or in the sequence of narration of events besides not in immediate succession to elicitations standing unearthed from him by the defence qua facets adverted to hereinbefore which affirmative elicitations qua them from PW-1 for reasons aforesaid hence stand construed to stand acquiesced by the defence also constrains a conclusion from this Court of with the defence omitting to put them at the apposite stage to PW-1 or in quick succession to the apposite suggestion impinging upon the penal acts ascribed to the accused by the prosecution, of the defence thereby holding no leverage to on anvil thereof canvass of the penal misdemeanor ascribed by the prosecution to the accused standing benumbed by his purportedly ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...20...
exercising his right of private defence rather the aforesaid .
defence being merely inventive besides surmisal unanchored upon credible material on record. The deposition of PW-1 stands corroborated by PW-15.
of
12. Before proceeding to allude to the medical evidence as exists on record preponderantly, the deposition of rt DW-3, the wife of the accused, who was available at the site of occurrence who therein has not denied the occurrence taking place on the relevant date rather has espoused the factum of the accused while exercising the right of private defence for thwarting the deceased to succeed in his strangulating the accused, the latter using a screw driver for delivering a blow with it on the right thigh of the deceased unveils an inference of the aforesaid deposition of DW-3 hence sustaining the prosecution version of screw driver recovered under memo Ext.PW-2/F to stand efficaciously linked and connected qua its standing used by the accused on the person of the deceased. The initial examination of the ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...21...
injuries sustained by the deceased stood conducted by PW-
.
12. The apposite MLC prepared by him in pursuance to his subjecting the deceased to medical examination is comprised in Ext.PW-12/A. Ext.PW-12/A stood prepared on 11.4.2008 of hence in quick spontaneity to the illfated occurrence, as a corollary when PW-12 in his cross-examination bespeaks rt therein of his thereat only noticing one injury on the thigh of the deceased renders incredible the deposition of both PW-1 and PW-15 of the accused striking the rear of the head of deceased with screw driver Ext.P-9. The alleged striking thereat by the accused stands pronounced in Ext.PW-13/D post mortem report, the relevant portion whereof stands extracted hereinafter, to prove fatal.
"1. The screw driver shown to me which was present in the second packet opened in my presence can cause the perforation in the jean pant shown to me.
2. Screw Driver shown to me can cause injury on right thigh as mentioned in post mortem report.::: Downloaded on - 15/04/2017 20:24:40 :::HCHP
...22...
3. There was a stitched wound present in the .
middle of thigh medial aspect measuring 5 cm obliquely placed. On exposure of wound massive laceration of thigh muscle of anterior compartment extending infero superiorly like a sinus up to femoral of canal. On local examination wound was bone deep.
4. That whether the injury is sharp or blunt opinion can be given only after obtaining case summary of rt the doctor who first attended the patient.
5. This injury can be caused by using enough force with screw driver shown to me."
Moreover, with PW-13 making a pointed disclosure in his deposition of the fatal injury being a sequel to the user thereon of screw driver Ext.P-9 begets an inference of the aforesaid disclosure standing evinced from PW-13 at the behest of the Investigating Officer to render its user begetting concurrence with the deposition of PW-1 and PW-15 of the accused striking a blow with it on the rear of the head of the deceased, whereas for reasons aforestated when PW-12 who initially examined the deceased in quick spontaneity to the ill-
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fated occurrence did not notice the fatal injury occurring on .
the back side of the head of the deceased renders its user thereon by the accused to be incredible. Moreover, when PW-
13 also in his cross-examination ascribes the reasons for the of occurrence of the fatal injury to a fall on hard surface dispels any user thereon of the screw driver by the accused. In rt aftermath the only injury ascribable to stand inflicted by the accused is the one on the right thigh of the deceased which stands manifested in Ext.PW-12/A, contrarily infliction of the fatal injury cannot stand ascribed to the accused. The learned trial Court had while aptly concluding of the prosecution failing to succeed in proving of the accused delivering a fatal blow on the rear of the head of the deceased with screw driver efficaciously recovered under recovery memo Ext.PW-2/F had also concluded of the injury denoted in Ext.PW-13/D reflected therein to be occurring on the right thigh of the accused unflinchingly standing proven to stand inflicted thereon with a blow of screw driver by the ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...24...
accused besides had concluded of even the aforesaid injury .
not holding any formidability for fastening any incriminatory role upon the accused especially given the imminent threat to the life of the accused emanating from the act of the of deceased accompanied by PW-1 who initiated the aggression upon the accused by chasing him upto the site of occurrence rt saved the aforesaid penal misdemeanor from punishment arousable from the factum of its standing committed by the accused while exercising his right of private defence for warding of the imminent danger accruing to him constituted by the manifestations upsurging from the record of theirs chasing the vehicle driven by the accused upto the relevant site of occurrence of theirs when hence holding aggressive postures towards him whereupon they stood inferred to purportedly initiate an aggression upon the accused. In other words, the learned trial Court while affording the benefit of right of private defence of person to the accused had inferred of the striking by the accused of blow on the right thigh of the ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...25...
deceased with a screw driver constituting an act standing .
saved by its exercise standing aroused by the accused holding a tenable right of private defence of person.
However, the aforesaid purveying of the benefit of the right to of private defence by the learned trial Court to the accused palpably spurs from an apparent misappraisal of evidence on record.
rt The afore referred acts whereupon the learned trial Court construed of the accused endangering the life of the deceased were both insufficient nor also were manifestive of theirs perse ipso facto communicative of any imminent threat or endangerment to the life of the accused upsurging therefrom especially when neither the deceased nor his friends were armed necessarily hence any exercise of right of private defence by the accused by his resorting to any actus reus to ward away any purported danger to his life by his perpetrating any penal act upon PW-1 or upon the deceased is not amenable to a construction of its standing exercised by the accused on his standing foisted with a right of private ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...26...
defence of body rather is amenable to a construction of his .
by a mere ipse dixit besides with his carrying a mens rea his proceeding to inflict injuries upon the deceased as well as upon PW-1. Even otherwise when the act of the deceased of chasing the accused was a sequel to the delinquent conduct of the accused hence bereft of any element of theirs while rt chasing the accused theirs holding any mens rea to perpetrate any penal misdemeanor upon him rather when there exists un-repulsed evidence on record articulative of the chasing of the accused by the deceased standing goaded by theirs merely intending to confront him with his delinquencies which occurred prior thereto contrarily foments an inference of the deceased not holding any aggressive postures towards the accused much less by his chasing the accused his endangering his life. In sequel, there was no occasion for the accused to invest in himself his holding any right of private defence to ward away any threat to his life as purportedly stood accrued on the deceased chasing him. Also it appears ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...27...
that the learned trial Court had while construing of the .
deceased endangering the life of the accused had founded the said inference on the score of the former attempting to strangulate the accused for scuttling consummation whereof of by the deceased, the accused holding a tenable right to for precluding its consummation strike a blow on the right thigh rt of the deceased. The aforesaid conclusion too stands untenably harboured upon apposite suggestions put by the learned defence counsel to PW-1 and PW-15 besides DW-3 the wife of the accused who uncontrovertedly was available at the site of occurrence communicating in her deposition of the deceased embarking to strangulate the accused for forestalling besides preventing consummation whereof the accused struck a blow on the right thigh of the deceased with a screw driver. Even though the aforesaid factum though may stand voiced by DW-3 nonetheless on its anvil any purveying to the accused the benefit of right of private defence or for imputing validation to the penal misdemeanor of the accused ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...28...
comprised in his striking a blow with a screw driver on the .
right thigh of the deceased, would slight besides efface the effect of PW-1 rendering an answer in the affirmative to the suggestion put to him by the learned defence counsel of the of accused striking a blow with a sharp knife like object on the abdomen of the deceased with an intention to kill, blow rt whereof stood averted by the deceased retracing his steps.
Moreover, it would also disimpute credence to the effect of the further echoing by PW-1 in his cross-examination verging upon the defence acquiescing of the accused disembarking from his car for chasing the deceased factum whereof when stands succored by existence of blood stains occurring on the car of the deceased besides the afore referred discussion purveying strength to an apt inference of the propagation by the defence of the accused perpetrating the penal misdemeanors ascribed to him in the exercise by him of his right of private defence for preempting the deceased consummating his act of strangulating the accused while his ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...29...
occupying his car suffering erosion especially when .
belittlement of its creditworthiness stands engendered by the defence counsel omitting to at the apposite stage put apposite suggestions to PW-1 in the sequence of evidence of embodying the aforesaid acquiescences by the defence, of hence the defence reared by the accused being merely rt surmisal or invented upon incredible evidence besides of hence the testimony of DW-3 while propagating therein of the penal misdemeanor ascribed by the learned trial Court to the accused spurring from the latter exercising his right of private defence being both misconceived and invented. For imputing credence to the testimony of DW-3 the wife of the accused who uncontrovertedly was an ocular witness to the occurrence, the putting of pari materia apposite suggestions by the learned defence counsel while holding PW-1 to cross-
examination was imperative, want whereof may render an inference of DW-3 while propagating in her deposition of the deceased concerting to strangulate her husband, for obviating ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...30...
consummation whereof the accused was led to wield a screw .
driver being entirely off the mark especially when the penal misdemeanor of the accused to attain validation on the anvil of his exercising the right of private defence of life emanating of from an imminent threat to his life ensuing from the deceased strangulating him thereby intending to cause his death was rt enjoined to stand foisted upon credible evidence. However, when the defence for reasons aforesaid acquiesces to the factum of the accused prior to his striking a blow of screw driver on the right thigh of the deceased also with an intention to kill the deceased striking an abortive blow with screw driver on the abdomen of the deceased imperatively belies the deposition of DW-3 of the striking of by the accused with screw driver the right thigh of the deceased being a sequel to the accused scuttling the concert of the deceased to strangulate him predominantly when DW-3 omits to echo in her deposition of prior to the accused striking the right thigh of the deceased with screw driver of the accused with an ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...31...
intention to kill the deceased striking an abortive blow with .
screw driver on the abdomen of the deceased. Otherwise also the deposition of DW-3 anvilled upon the relevant act standing committed by the accused while his manning the of drivers seat is bereft of veracity in the face of the aforesaid discussion manifesting of the occurrence taking place outside rt the car. The apt sequitur thereof is with the suppression of the aforesaid fact by DW-3 whereas for the aforestated reasons it stands acquiesced by the defence is of the main anchor of the defence of the accused committing the penal misdemeanor while his exercising his right of private defence of person standing stripped of vigour. Contrarily it has to be concluded of the deceased not purveying any imminent threat to the life of the accused by concerting to strangulate him rather as evident from the affirmative response to the apposite suggestion put to PW-1 of his striking an abortive blow with screw driver Ext.P-9 on the abdomen of the deceased with an intention to kill the deceased rather ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...32...
constituting an offence of his attempting to murder the .
deceased. Even when the demise of the deceased, for reasons afore-stated, stands sequelled by a cause other than the one ascribed to the accused by the prosecution, of nonetheless his death would not deaden either the penal effect or the longevity of the proven penal incriminatory act of rt the accused of his attempting to murder the deceased rather the said proven incriminatory act of the accused would remain alive for an appropriate punishment qua its commission being meted to him.
13. The summum bonum of the above discussion is of right of private defence being tenably purvey-able to the accused only on proof emanating by clinching evidence of an imminent threat endangering his life emanating from the accused. However, when evidence displays of no imminent threat emanating to the life of the accused by any proven act of the deceased, the accused cannot in perpetrating a penal misdemeanor upon the accused validate it on his holding a ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...33...
right of private defence of life. Consequently, this Court .
proceeds to convict him under Section 307 IPC.
14. Since the accused also stands charged for committing an offence under Section 324 IPC constituted by of his causing hurt to Sameer Yadav with user of screw driver in proof whereof PW-1 deposes of the accused inflicting with rt sharp knife like object injuries on his arm and hand. The factum aforesaid stands lent corroboration by PW-15.
Moreover, with blood stained clothes of Sameer Yadav standing taken into possession vide memo Ext.PW-1/B proven by PW-1 whereupon FSL concerned in its apposite report has recorded an opinion of theirs containing the blood of the deceased besides the blood of Sameer Yadav also when in tandem thereof PW-16 has deposed of on the date of occurrence on his examining Sameer Yadav his preparing Ext.PW-16/C wherein the afore referred injuries stands enunciated to stand begotten by the user of screw driver by the accused cannot but constrain an inference of the learned ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...34...
trial Court having fallen in gross error in construing of the .
prosecution failing to prove the factum of the accused with screw driver not inflicting injuries on the person of Sameer Yadav. Consequently, the impugned judgement merits of interference. The appeal filed by the State stands partly allowed in the afore-referred manner.
15. For rt the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has not 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 does suffer from perversity or absurdity of mis-appreciation and non appreciation of evidence on record.
16. The accused is convicted for his committing an offence punishable under Section 307 IPC and is also convicted for his committing an offence punishable under Section 324 IPC qua his inflicting injury with screw driver on ::: Downloaded on - 15/04/2017 20:24:40 :::HCHP ...35...
Sameer Yadav and for his inflicting injuries on the right thigh .
of the deceased.
17. Let the accused be heard on 31st May, 2016 on quantum of sentence.
of ( Rajiv Sharma ) Judge.
20th May, 2016.
rt ( Sureshwar Thakur )
™ Judge.
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