Himachal Pradesh High Court
Jai Ram vs State Of Himachal Pradesh on 28 April, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No.153 of 2008.
Reserved on: 22nd April, 2016.
Decision on: 28/04/2016.
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Jai Ram .....Petitioner.
Versus
State of Himachal Pradesh .....Respondent.
of
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt Whether approved for reporting? Yes.
For the Appellant: Mr. N.K. Thakur, Senior Advocate with Mr.Surinder K.Sharma, Advocate.
For the Respondent: Mr.Vivek Singh Attri, Deputy Advocate General.
____________________________________________ Sureshwar Thakur, Judge
1. The instant revision petition is directed against the judgment of the learned Additional Sessions Judge, Una, Himachal Pradesh, rendered on 19.7.2008 in Criminal Appeal No.1 of 2007 whereby the learned appellate Court affirmed the conviction and consequent sentence imposed upon the accused by the learned trial Court under Section 325 IPC whereas it ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...2...
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reversed the findings of conviction and consequent sentence imposed by the learned trial Court upon the accused under .
Section 323 IPC.
2. The facts relevant to decide the instant case are that on 31.1.1998 at about 6.00 p.m. the complainant who was the owner of bus bearing No. HP-20-5507 was acting as a of conductor in the said bus. The bus was going to Santoshgarh from Una at about 6.00 p.m. The accused was acting as a rt conductor in bus bearing No. HP-20-5611. Some altercation started inter se both of them regarding the loading of passengers in their respective buses and when the complainant went near the bus of the accused and asked him to close the door of the vehicle and to part it on one side the accused is stated to have lost his tamper and inflicted kick on the complainant, as a result thereof one tooth of the complainant was broken at the spot. Besides that the complainant sustained injuries on his tooth and lips, blood started oozing from his mouth. One Dinesh Bali and Driver Amrik Singh rescued the complainant from the accused. As per the complainant, he could not get the report lodged at the very ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...3...
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moment as he had loaded passengers to Santoshgarh and the same was lodged only after he returned from Santoshgarh.
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3. On completion of investigation into the offences allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court.
4. The accused-appellant herein stood charged for of committing offences punishable under Sections 323 and 325 of the Indian Penal Code to which he pleaded not guilty and rt claimed trial. In order to prove its case, the prosecution examined 8 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, stood recorded wherein he pleaded innocence and claimed false implication. In defence he chose not to lead any evidence.
5. On appraisal of the evidence adduced before the learned trial Court it convicted and sentenced the accused for his committing offences punishable under Sections 323 and 325 IPC. However, the appellate Court affirmed the conviction and sentence recorded by the learned trial Court qua the accused under Section 325 IPC whereas it reversed the conviction and ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...4...
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sentence recorded qua the accused by the learned trial Court under Section 323 IPC.
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6. The accused-appellant stands aggrieved by the judgment of conviction recorded by the learned Appellate Court. The learned defence counsel has concerted to vigorously contend before this Court qua the findings of of conviction recorded by the learned trial Court standing not anvilled on a proper appreciation by it of evidence on record rt 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 findings of acquittal.
7. On the other hand, the learned Deputy Advocate General appearing for the State has with considerable force and vigour contended qua the findings of conviction recorded by the Courts below being based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather theirs meriting vindication.
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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 proof of the prosecution case the injured/complainant stepped into witness box as PW-2 and in his deposition comprised in his examination-in-chief he has of emphatically proved the genesis of the prosecution case comprised in FIR Ext.PW-8/A. He has withstood the rigors of rt an exacting cross examination. Given his remaining unscathed in the ordeal of a grueling cross examination to which he stood subjected to renders his testimony qua the ill fated occurrence to be both inspiring and trustworthy.
10. Even though the salutary deposition of an injured/complainant enjoys sanctity nonetheless corroboration thereto stands meted by an ocular witness to the occurrence who deposed as PW-3. PW-3 alike PW-2 remaining unscathed during the ordeal of a grueling cross examination to which he stood subjected to by the learned defence counsel constitutes his testimony to lend efficacious corroboration to the testimony qua the occurrence emanating in the deposition of PW-2.
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11. Be that as it may, another ocular witness to the occurrence PW-4 though turned hostile nonetheless the mere .
fact of his turning hostile would not benumb the prosecution version, in the light of his in his cross-examination admitting the suggestion put to him of the complainant and the accused standing engaged in the process of resolving their dispute.
of Furthermore, with this witness also admitting the suggestion put to him by the learned defence counsel of his proceeding rt along with the complainant to the Police Station concerned to lodge an FIR qua the occurrence is magnificatory of its bespeaking acquiescence by him of the ill-fated occurrence having taken place. Moreover, given the effect of the aforesaid admission of PW-4 an ocular witness to the occurrence who though turned hostile, is of his though accompanying the accused to the Police Station concerned to lodge a report qua the occurrence his omitting to disclose to the police any narration qua it contrary to the one rendered by the victim/complainant for hence the latters version qua it standing ridden with a vice of falsity especially when no material exists on record in display of his raising a protest earlier to the version ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...7...
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propounded by the complainant in F.I.R. Ext.PW-5/A its hence fostering an inference of his also concurring with the version .
qua the occurrence narrated by the complainant to the police agency concerned. Amplifyingly, hence the mere factum of his turning hostile does not carry any vigor in displacing the efficacy of the prosecution case embedded upon the of unblemished corroborative testimonies of the injured/complainant and of an ocular witness who deposed as PW-3.
rt
12. Moreover, even if PW-7 another ocular witness to the occurrence omits to lend support to the prosecution case.
However, omission aforesaid would not also undermine the vigor of the prosecution version deposed with intra se corroboration by PW-2 and PW-3 as given the admission of PW-
7 of the victim/complainant working as a conductor on the bus on the relevant day does give leeway to an inference of an incident of the accused assaulting the victim occurring on the relevant day in sequel whereto the victim stood deprived of his tooth, fact whereof for reasons afore-stated stands sustained by the un-besmirched ocular testimonies of PW-2 and PW-3.
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13. The doctor who subjected the victim/complainant to medical examination and has proven the apposite MLC .
comprised in Ext.PW-1/A with a disclosure therein of his upper lateral incisor amiss in the oral cavity of the victim besides his divulging therein of the victim producing before him the broken tooth gives potent succor to the prime factum as espoused with of intra se corroboration by both PW-2 and PW-3. The effect thereof is of its also benumbing the testimonies of PW-4 and rt PW-7 who at variance with their previous statements recorded in writing have testified of theirs not witnessing the occurrence nor they hence lend corroboration to the testimonies of PW-2 and PW-3.
14. The recovery of broken tooth stood effectuated at the instance of the complainant by the Investigating Officer under Memo Ext.PW-2/A. Dinesh Kumar one of the recovery witnesses to it has proven the recitals recorded in Ext.PW-2/A. However, Ram Krishan the other witness to recovery of broken tooth under Memo Ext.PW-2/A has during his cross examination by the learned Public Prosecutor on his standing declared hostile articulated therein of the tooth portrayed in Ext.PW-2/A ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...9...
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standing not handed over in his presence by the complainant to the Investigating Officer nonetheless with his admitting his .
signatures borne on Ext.PW-2/A negates the effect of his testimony qua the disclosures therein being false especially when the statutory embargo encapsulated in Sections 91 and 92 of the Evidence Act against his deposing in digression to the of signatured recitals comprised in Ext.PW-2/A, signatures whereon stand admitted by him sequelly thwart him to orally rt digress from the contents/recitals embodied therein. In sequel the effect of his deposing in his cross examination of the complainant not in his presence handing over the broken tooth to the Investigating Officer cannot erode the effect of the signatured recitals recorded in Ext.PW-2/A nor can displace the conclusivity enjoyed by the signatured recitals qua the aforesaid facet recorded in Ext.PW-2/A. In aftermath, the portrayals in Ext.PW-1/A stand succored by Ext.PW-2/A.
15. Be that as it may, the learned counsel for the revisionist/accused contended before this Court of the MLC of the victim/complainant comprised in Ext.PW-1/A standing drawn/prepared on 31.1.1998 whereas Ext.PW-2/A stood ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...10...
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subsequently prepared on 2.2.1998 cannot impute truth to the factum recorded in Ext.PW-1/A of the victim/complainant .
thereat handing over his tooth to PW-1 at the stage contemporaneous to his subjecting him to medical examination also the learned counsel contends of the tooth subsequently handed over on 2.2.1998 by the injured/complainant to the of Investigating officer which led to the preparation of Ext.PW-2/A not constituting the tooth dislodged or broken from the denture rt of the victim/complainant on his standing assaulted by the accused. However, the aforesaid contention stands effaced in the light of the accused omitting to at the apposite stage obtain a direction from the learned trial Court for the broken tooth of the victim/complainant being sent to the expert concerned for facilitating him on his subjecting it to appropriate tests purvey an opinion of the tooth of the complainant unveiled in Ext.PW-
1/A though recovered subsequently under Ext.PW-2/A not belonging to the victim/complainant. Consequently, for omission of the aforesaid endeavour at the apposite stage by the learned counsel for the accused foments an inference of the portrayals in Ext.PW-1/A of at the stage of PW-1 subjecting the ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP ...11...
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victim/complainant to examination, the former producing before him the broken tooth and it being the very same tooth of the .
victim/complainant which stood recovered under Ext.PW-2/A. Consequently, the effect if any of the delay in preparation of Ext.PW-1/A and the subsequent recovery under Ext.PW-2/A of the broken tooth of the injured/complainant, is inconsequential.
of
16. For the reasons which have been recorded hereinabove, this Court holds that the learned Appellate Court rt 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 Appellate Court below does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of the evidence on record, rather they have aptly appreciated the material available on record.
17. Hence, the revision petition is dismissed and the impugned judgment of conviction and sentence rendered by the learned Appellate Court is affirmed and maintained.
Records be sent back.
(Sureshwar Thakur)
___ April, 2016 Judge.
(soni)
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