Himachal Pradesh High Court
Harjinder Singh Alias Nirmal Singh & ... vs State Of H.P on 9 September, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 267 of 2016.
Reserved on : 1st September, 2016.
.
Date of Decision: 9th September, 2016.
Harjinder Singh alias Nirmal Singh & others .....Appellants.
of
Versus
State of H.P. ....Respondent.
rt
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellants: Mr. N.K. Thakur, Senior Advocate with Ms. Jamna Devi, Advocate.
For the Respondent: Mr. M.A. Khan, Additional Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment rendered on 07.04.2016 by the learned Additional Sessions Judge (II), Una, District Una, H.P. in Sessions trial No.40 of 2014, whereby, the learned trial ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 2 Court convicted and sentenced the appellants/accused as under:
Sr. No. Sections Sentence imposed
.
1. 302/34, IPC Sentenced each of the accused to undergo rigorous life imprisonment and to pay a fine of Rs.15,000/- each. In default of payment of fine, the convicts shall further undergo simple imprisonment for a period of one year.
2. 323/34, IPC Sentenced each of the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- each. In default of payment of fine amount, the convicts shall further undergo simple imprisonment for a period of three months .
of
3. 324, IPC Sentenced each of the accused to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.3000/- each. In default of payment of fine amount, the rt convicts shall further undergo simple imprisonment for a period of six months.
2. Brief facts of the case which are necessary to determine the appeal are that on 18.3.2014, SHO, Police Station, Haroli received an information on his mobile phone that a person had died in a scuffle at village Baliwal. Upon this, the SI/SHO along with HHC Dilbari Lal reached Baliwal at about 11.00 p.m. where ASI Paras Ram was already present along with other police officials and had secured the spot. One Sukhwinder Singh, son of late Sh. Narinder Singh got his statement recorded under Section 154 Cr.P.C.
stating that he was a resident of village Pubowal. He had lost his parents whereafter he as well as his younger brother had been brought to the house of his maternal ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 3 grand parents. About four months ago, he had solemnized love marriage with one Puja, who was the sister-in-law of his maternal uncle, Nirmal Singh. On account of the fact .
that his maternal uncles did not approve his marriage with Puja, both of his uncles namely Nirmal Singh and Sadhu Singh nourished ill will against him. He further stated that he was a crane operator at Baddi and had come home of from Baddi on 18.3.2014. At about 8.30 p.m., he along with his friends, Daljit Singh alias Deepu and one Babbi rt had come to the maternal house of the complainant at Baliwal, to meet his maternal grandmother. They had come on a motorcycle make Pulsar PB-08-BL-1390. When they reached the maternal house of the complainant, both the maternal uncles were present there. When the complainant tried to touch the feet of his maternal uncles, they started hurling abuses at him and also tried to assault him. Considering the sensitivity of the situation, the complainant along with his two friends left the place on their motorcycle. When they had reached near Senior Secondary School Baliwal, Babi stated that his purse had been dropped somewhere, upon which all of them got down and started looking for the purse. Suddenly, the ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 4 maternal uncles of the complainant, namely Sadhu Singh and Nirmal Singh along with truck driver Ramesh, came to the spot riding motor cycle No. HP-20C-3641, which was .
being driven by Sadhu Singh. They suddenly got down from the motorcycle and started assaulting the complainant and his friends. Sadhu Singh gave danda blows, Ramesh Kicks and fist blows to the complainant and of his friends and Nirmal Singh gave blows with a darat to the complainant and Daljit Singh. The complainant suffered rt injuries on his left hand as a result of the blow from the darat. Daljit Singh received darat blow on his face near left side of his neck and also on the right hand. The complainant Sukhwinder Singh and his friend Babi ran away from the spot to save their life, but Daljit Singh could not do so and fell down. As a result of the injuries received by Daljit Singh he died on the spot. It was thus stated that Nirmal Singh, Sadhu Singh and Ramesh had caused injuries to complainant and Babi and murdered Daljit Singh. On the basis of the statement of the complainant, FIR was registered at the police station concerned. After the registration of the FIR, the police started the ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 5 investigation in the case and concluded all the formalities thereto.
3. On conclusion of investigations, into the .
offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court.
4. The accused were charged by the learned trial of Court for theirs committing offences punishable under Sections 302, 323 and 324 read with Section 34 of the IPC rt to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 28 witnesses. On closure of prosecution evidence, the statements of accused, under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence. However, they have not led any defence evidence.
6. On an appraisal of evidence on record, the learned trial Court, returned findings of conviction against the accused/appellants.
7. The accused/appellants are aggrieved by the judgment of conviction recorded by the learned trial Court.
The learned defence counsel for the appellants has ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 6 concertedly and vigorously contended qua the findings of conviction 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 conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by of findings of acquittal.
8. On the other hand, the learned Additional rt Advocate General has with considerable force and vigour, contended qua the findings of conviction 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.
9. 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.
10. Preceding the ill-fated occurrence which occurred on 18.3.2014 near Senior Secondary School, Baliwal, PW-1, an ocular witness thereto testifies qua his along with deceased Daljit Singh and PW-7 Babi visiting the ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 7 house of his maternal grand mother at Village Baliwal.
Whereat he testifies qua his maternal uncles, accused Nirmal Singh and accused Sadhu Singh being also present.
.
He testifies qua both his maternal uncles arraigned as accused, nursing ill will against him on account of his contracting a love marriage with one Puja Devi, who stands related to accused Nirmal Singh being his sister-in-law of (sali). He proceeds to testify qua despite his proceeding to seek blessings of his uncles by touching their feet, both yet rt proceeding to abuse him and quarrel with him, in course whereof, the shirt of Babi (PW-7) was torn. The incident aforesaid which occurred at Baliwal, constrained PW-1 to along with his friends, one amongst whom was deceased Daljit Singh, to depart therefrom on motor cycle bearing No. PB-08-BL-1390 driven by deceased Daljit Singh.
However, he testifies of, on their arriving at Senior Secondary School, Baliwal, a communication stand made by PW-7, Babi to him qua his dropping his purse whereupon they by alighting from the motorcycle proceeded to make a search for it. However, during the course of theirs launching a search for locating the purse of PW-7, the accused atop a motor cycle bearing No. HP-
::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 820C-3641 driven by accused Sadhu Singh abruptly arrived thereat. He deposes of all the aforesaid on alighting from the motorcycle proceeded to assault them with danda and .
fist blows. Sadhu Singh stands testified by PW-1 to wield a danda whereas accused Nirmal Singh is testified by him to be wielding a darat (sickle). He makes a communication in his deposition of accused Nirmal Singh assaulting him with of a darat in sequel whereof his finger was injured whereafter he deposes of accused Nirmal Singh delivering a blow with rt a sickle on the arm of Daljit Singh, assault whereof thereon, stood succeeded by his delivering a blow with darat, Ex. S-1, on the neck of deceased Daljit Singh.
However, he deposes of his fleeing from the site of occurrence and hiding himself in bushes wherefrom he witnessed of accused Nirmal Singh and Sadhu Singh administering fist blows on PW-7 Babi and Daljit Singh. He continues to depose of PW-7 also fleeing from the spot besides of accused Ramesh fleeing from the site of occurrence and on the latter raising outcries, in response whereof people gathered at the spot.
11. The aforesaid ocular narrative qua the occurrence bespoken by PW-1 holds absolute concurrence ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 9 vis-a-vis his previous statement recorded in writing. His testimony qua the occurrence when bereft of any taint of any gross, blatant besides stark contradictions embodied .
in his examination-in-chief vis-a-vis his cross-examination gives a firm impetus to this Court to erect thereupon a formidable conclusion of his rendering a truthful ocular rendition qua the occurrence. His ocular account qua the of ill-fated occurrence significantly qua the factum of his standing struck with danda blows by accused Sadhu Singh rt besides qua other co-accused belabouring him with fist blows also his rendering an untainted ocular rendition qua the trite factum of accused Nirmal Singh with sickle (darat), Ex.S-1 striking a fatal blow on the neck of deceased Daljeet Singh is a potent display of his proving the inculpatory role of the accused in the ill-fated occurrence. His truthful ocular rendition qua the ill-fated occurrence stands firmly corroborated by the apposite MLC prepared qua him by the doctor concerned, MLC whereof stands embodied in Ex.PW15/A. Furthermore, with PW-27, Dr. Piyush Nanda, Medical Officer, who subjected the deceased Daljit Singh to postmortem examination in sequel whereof he prepared postmortem report comprised ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 10 in Ex.PW27/B vividly pronouncing in his testification of the relevant injuries noticed by him to be occurring on the body of the deceased being sequelable by user thereon of .
Darat, Ex. S-1 recovered at the instance of accused Nirmal Singh under memo Ex.PW8/D, preceding whereof his apposite disclosure statement comprised in Ex.PW 8/A stood recorded, gives a vigorous clout to a tenacious of inference qua the ocular testimony qua the occurrence rendered by PW-1 attaining a sacrosanct virtue of truth by rt probative corroborative evidence aforesaid besides hence its warranting credibility being fastened thereto.
12. The ocular account qua the occurrence rendered by PW-1 though concerted to be corroborated by PW-7, Babi, also an ocular witness thereto yet PW-7 reneged from his previous statement recorded in writing whereupon the defence endeavours to impute incredibility to the testification of PW-1 arousable from the factum of the testification of the PW-1 standing omitted to be corroborated by PW-7. However, the testification of PW-7, who reneged from his previous statement recorded in writing hence in his examination-in-chief unfolds echoings qua the ill-fated occurrence adversarial to the success of ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 11 the prosecution case, would not beget the sequel of its yet suffering the ill-fate qua its standing omnibusly axed nor his testification embodied in in his examination-in-chief .
alone would dispel the vigour in its entirety of his testimony unless he in his cross-examination akin to his examination-in-chief makes alike unfoldments qua the occurrence, unfoldments whereof are adversarial to the of success of the prosecution case. Consequently, only on a wholesome reading rt of his testimony would an apt conclusion be garnerable therefrom qua whether his meteing or omitting to mete corroboration qua the relevant factum probandum unfolded by PW-1. Also there is no trite exposition of law, of the testimony of a hostile prosecution witness being omnibusly discardable. Contrarily, the principle of law enjoined to be borne in mind while evaluating the testimony of a hostile prosecution witness, is of it standing read in a wholesome manner, reading whereof when unfolds qua his on material particulars supporting the prosecution case, especially qua the factum probandum besides the trite factum deposed by PW-1, his testification occurring in his examination-in-chief though adversarial to the prosecution case being discardable.
::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 12Contrarily, his relevant testification qua the fulcrum of the the ill-fated occurrence embodied in his cross-examination, if corroborative vis-a-vis the rendition of an ocular account .
thereto by PW-1, warranting deference. Bearing in mind the trite principle aforesaid, this Court proceeds to incisively besides with keen discernment appraise his testimony. In his cross-examination, he corroborates PW-1 of qua accused Sadhu Singh holding him by his collars sequeling his shirt getting torn also he corroborates PW-1 rt qua on their arriving near Government Senior Secondary School, Baliwal, on his thereat detecting his purse located in his pocket not occurring therein, theirs launching a search for its location. Though, he contradicts PW-1 qua the accused while standing armed with danda and sickle (darat) theirs on a motorcycle abruptly arriving thereat also he contradicts PW-1 of the accused belabouring PW-1 with stick besides darat, Ex. S-1. He further contradicts PW-1 of the accused belabouring PW-1 with fist blows. In addition, he contradicts PW-1 qua accused Nirmal Singh inflicting a sickle blow on the neck of deceased Daljit Singh. However, he attributes the occurrence to some unknown persons. Nonetheless, the effect, if any, of his ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 13 qua the aforesaid facet contradicting PW-1 stands benumbed rather negated by his acquiescing to the suggestion put to him by the PP concerned while holding .
him to cross-examination qua his fleeing from the spot for saving himself from the assault perpetrated by the accused. His acquiescence qua the facet aforesaid is a visible loud display of his ascribing an incriminatory role of vis-a-vis the accused. Besides he also acquiesces qua the factum of PW-1 fleeing from the spot. The further effect rt qua his acquiescences qua the factum of his receiving injuries on his back and arm besides of his acquiescing in his cross-examination qua his departing from the site of occurrence for obviating his standing assaulted by the accused, is qua theirs cumulatively besides tellingly holding an effect qua his thereupon corroborating PW-1 qua the assault at the relevant site of occurrence standing perpetrated by the accused. Also hence it subsumes the factum of his attribution in his testification embodied in his examination-in-chief qua the relevant assault standing perpetrated by some unknown persons. Contrarily, the effect of his acquiescences to the suggestions put to him by the PP concerned while holding him to cross-examination ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 14 embodying therewithin the factum of his in the relevant occurrence standing inflicted with injuries on his back and arm by the accused is an abundant portrayal of his lending .
corroboration to the ocular rendition qua the occurrence by PW-1, wherein the latter efficaciously besides emphatically proves the genesis of the prosecution case. Since the effect of the aforesaid acquiescences made by PW-7 hold of tenacity for giving corroborative vigour to the ocular rendition qua the occurrence by PW-1, hence reverence is rt enjoined to be meted thereto, despite his in the earlier portion of his testification rendering a version qua the occurrence contradictory to the one deposed qua it by PW-
1. Conspicuously, when it is the trite expostulation of law, of with a hostile prosecution witness on material particulars lending succor to the genesis of the prosecution case, his corroborative testimony qua the relevant facets ocularly testified by PW-7 warranting imputation of credibility thereto. In sequel, when on a wholesome reading of the testimony of PW-7, it stands concluded qua his testimony imputing vigorous corroborative succor to the rendition of an ocular account qua the occurrence by PW-1 whereupon hence an invincible conclusion qua the ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 15 prosecution succeeding to prove the guilt of the accused is unfailingly ensuable. As an apt sequitur thereto, the contention of the learned counsel for the appellants of with .
PW-7 reneging from his previous statement recorded in writing, hence, his not corroborating the ocular rendition qua the occurrence by PW-1 effacing the credibility of PW-1 stands negated also warrants its standing of discountenanced by this Court.
13. The factum of efficacy of recovery of darat, Ex.S-
rt 1 by the Investigating Officer at the instance of accused Nirmal Singh under recovery memo Ex.PW8/B, preceding whereof his apposite disclosure statement stood recorded comprised in Ex.PW8/A, stands evinced from apposite credible testifications of recovery witnesses thereto. The aforesaid efficacious proof of recovery of the relevant weapon of offence firmly connects the accused in the commission of the offences alleged.
14. Be that as it may, with revelations occurring in Ex.PW28/J, exhibit whereof constitutes the apposite report of the FSL concerned qua the occurrence of blood group 'O' on darat, Ex.S-1, blood group whereof belonged to deceased Daljit Singh, does also unfailingly connect the ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 16 accused in the commission of the offences alleged.
Prominently, darat, Ex. S-1 stands deposed by PW-1 to be the relevant weapon of offence with user whereof accused .
Nirmal Singh inflicted a fatal blow on the neck of deceased Daljit Singh also consequently when its evident efficacious recovery stood effectuated by the Investigating Officer at the instance of accused Nirmal Singh besides with of Ex.PW28/J making articulations qua the occurrence of blood on the clothes of accused also qua occurrence of rt blood on the relevant weapon of offence, occurrence whereof thereon stands not explicated by the accused, hence firmly connects him with the commission of the offences alleged also lends sustainable vehement force to the conclusion as formed by the trial Court qua the testimony of PW-7 even when he in his examination-in-
chief contradicts PW-1, his aforesaid relevant admissions, on material accounts qua the factum probandum qua the genesis of the prosecution case occurring in his cross-
examination when mete vigorous corroboration to the ocular renditions qua the occurrence by PW-1, hence enjoying probative tenacity.
::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 1715. With the accused on motorcycle bearing No. HP-
20C-3641 driven by accused Sadhu Singh chasing PW-1, PW-7 besides Daljit Singh upto Senior Secondary School, .
Baliwal whereat they stood armed also with accused Nirmal Singh and Sadhu Singh, the maternal uncles of PW-
1 evidently nursing ill will against him on account of his marrying the sister-in-law (sali) of accused Nirmal Singh, of hence with theirs holding incendiarised frayed tempers against PW-1 is a palpable display of theirs rt holding a premeditated mensrea to commit the offence alleged.
Consequently, with theirs in unison assaulting PW-1, PW-7 besides deceased Daljit Singh, hence, even if the relevant fatal injury on the person of deceased stood delivered by accused Nirmal Singh would not per se render the other co-accused unamenable to conviction. Contrarily with theirs in unison chasing the aforesaid uptill the Senior Secondary School, Baliwal, hence unfolding their premeditated mansrea to launch an assault upon them besides when on their abrupt arrival at the site of occurrence they in unison assaulted PW-1, PW-7 and deceased Daljit Singh, they are all to be construable to be amenable to theirs holding a joint or a common ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 18 premeditated mensrea to commit the offences alleged.
Even though Ramesh did not carry any weapon of offence yet with his joining the company of other co-accused from .
the latters home upto the site of occurrence, he is to be hence construed to be since his joining the company of other co-accused upto the site of occurrence all throughout besides at the site of occurrence holding both knowledge of besides a joint inculpable mensrea with them to commit the relevant offences. Conspicuously, when he arrived upto rt the site of occurrence with other co-accused, with the latter holding the relevant weapons of offences, he is to be concluded qua his sharing a premeditated joint mensrea along with them to commit the offences alleged. In sequel, he is amenable for vicarious criminal inculpation with them.
16. The summom bonum of the aforesaid discussion is that the learned trial Court below 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 does not suffer from any perversity or absurdity of mis-appreciation and non ::: Downloaded on - 15/04/2017 21:13:10 :::HCHP 19 appreciation of the evidence on record, rather it has aptly appreciated the material available on record.
17. Consequently, there is no merit in the instant .
appeal and it is accordingly dismissed. In sequel, the judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.
of
(Rajiv Sharma),
Judge
rt (Sureshwar Thakur)
9 th
September, 2016 Judge.
(jai)
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