Himachal Pradesh High Court
Dharmender Singh And Others vs State Of H.P on 2 March, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 121 of 2007 .
Date of Decision :2nd March, 2015.
Dharmender Singh and others .....Petitioner/Accused.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioners:Mr. Ajay Sharma, Advocate For the Respondent: Mr. R.S. Thakur, Addl. A.G. and Mr. Vivek Singh Attri, Deputy Advocate General.
____________________________________________ __ Sureshwar Thakur, Judge (Oral).
The instant criminal revision is directed against the impugned judgment rendered on 7.7.2007 by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P in Cr. Appeal No. 9-D/2005/2003, whereby, ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 2 the learned Additional Sessions Judge affirmed the conclusions/findings recorded by the learned Judicial .
Magistrate, 1st Class, Dharamshala, H.P. in Criminal Case No.36- II/02, of 01.02.2003, whereby the petitioners/accused were convicted and sentenced accordingly.
2. Brief facts of the case are that on 10.05.2002 at about 8.30 P.M., Naveen Kumar was returning home after snapping photographs in some marriage at Bhanala. When he reached at his Village Goju and was at a distance of about 80 meters from his house, the accused after forming an unlawful assembly wrongfully restrained him and used abusive language against him. The accused did this after forming unlawful assembly in prosecution of their common object and accused Jasbir Singh attacked Naveen Kumar with sharp edged weapon and caused injury on his arm. The injured raised alarm on which his father Dalip Singh rushed to the spot. When Dalip Singh tried to rescue Naveen Kumar, he was also administered beatings by the accused. Some people also assembled on the spot and Naveen Kumar and his father were rescued from the ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 3 clutches of the accused by them. All the accused have been alleged to have been armed. The accused while leaving the .
spot also raised threats to the lives of the injured Naveen Kumar as well as his father Dalip Singh. The matter was reported to the police and FIR was registered. The investigation in the matter was conducted. During the investigation darat with which the injury was allegedly caused on the person of Naveen Kumar was taken into possession in presence of witnesses in the police station. The shirt of Naveen Kumar was also taken into possession. Both the injured were got medically examined. Naveen Kumar was found having suffered simple as well as grievous injuries whereas his father Dalip Singh was found having suffered simple injury. The statements of the witnesses were also recorded.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 44. Accused were charged for theirs having committed offences punishable under Sections 147, 148, 341, 323, 326 .
and 506 of the IPC by the learned trial Court to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which they pleaded innocence and no evidence was led by them in defence.
6. On appraisal of the evidence on record the learned trial Court returned findings of conviction against the accused/petitioners. In appeal preferred by the accused/petitioners, the learned Additional Sessions Judge affirmed the findings/conclusions recorded by the learned trial Court.
7. The accused/petitioners are aggrieved by the judgment of conviction recorded by the learned trial Court and affirmed by the learned Additional Sessions Judge. The learned defence counsel has concertedly and vigorously contended that ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 5 the findings of conviction recorded by the learned trial Court and affirmed by the learned Additional Sessions Judge are not .
based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation and non appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its revisional jurisdiction and be replaced by findings of acquittal.
8. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the learned trial Court below and affirmed by the learned Additional Sessions Judge are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit 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.
::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 610. The overwhelming factor which predominated both the learned Court below to record findings of conviction against .
the accused was the factum of the purported eye witnesses to the occurrence, PW-2 and PW-3 having both deposed in harmony and in tandem qua the incident, besides the factum of the alleged weapon of offence darat Ex.P-1 efficaciously proved to be recovered under seizure memo Ex.PW6/A also weighed with both the learned Court below in recording findings of conviction against the accused/petitioners. The learned counsel for the petitioners/accused has contended with force that the implicit reliance placed by the learned Court below on the existing material on record is ridden with infirmity and frailty.
However, on the other hand the learned Additional Advocate General has with equal fervor argued that the prosecution has been able to prove the guilt of the accused/petitioners by adducing clinching evidence on record comprised in the material tenably relied upon by both the learned Courts below.
11. I have perused the records with incisive care and caution. It is apparent that though the weapon of offence ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 7 darat Ex.P-1 recovered under memo Ex.PW6/A has been purportedly proved to have been efficaciously recovered by the .
recorded deposition of witnesses to it, who have stepped into the witness box as PW-6 and PW-9 respectively, yet an incisive scanning of the deposition of PW-6 underscores the legal frailty with which it stands gripped. PW-6 in his deposition comprised in his examination-in-chief has deposed that the darat Ex.P-1 was handed over by accused Jasbir Singh. However, in his cross-examination he has proceeded to name one Harnam Singh to be the person, who 10-15 days after the occurrence produced Ex.P-1 in the police station. In the next breath he vacillates and deposes that one Hem Raj had handed over darat Ex. P-1 to the police. Obviously, hence, on a close reading of his deposition comprised both in his examination-in-chief and cross-examination, portrays the factum that there has been lack of an unflinching portrayal therein of whether accused Jasbir Singh was the person, who had handed over darat Ex.P-1 to the police, that too 10/15 days after the occurrence or whether one Harnam or Hem Raj had handed over the darat Ex.P-1 to ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 8 the police. The vacillation existing in his testimony recorded on oath obviously has not been able to unveil the categorical .
factum whether accused Jasbir Singh or whether Harnam or Hem Raj is the person, who had handed over the darat Ex.P-1 to the police. The existence of vacillation therein and lack of an accurate and unwavering revelation of the identity of accused Jasbir Singh being the person at whose instance darat Ex.P-1 was recovered, prods this Court to conclude that the testimony of this witness is ridden with the frailty of disharmony inter se in his deposition in his examination-in-chief and in his cross-
examination, for constraining this Court to draw a conclusion that as a matter of fact accused Jasbir Singh had under memo Ex.PW6/A handed over darat Ex.P-1 to the police in his presence. Pre-eminently, the factum existing in his cross-
examination, of Harnam Singh having produced darat Ex.P-1 to the police 10-15 days after the occurrence and which deposition stand equivocated by him, inasmuch as he proceeded to depose that one Hem Raj did so and that too in the police station, fillips an inference that the factum as displayed in ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 9 Ex.PW6/A of Ex.P-1 (darat) having been recovered at the instance of accused Jasbir Singh in the manner disclosed .
therein is ridden with falsity. Consequently, it appears that both the learned Courts below have misread and mis-appraised the testimony of PW-6 even when it displayed lack of an accurate depiction of the identity of the accused and his being the person who begot an efficacious recovery of darat Ex.P-1 under recovery memo Ex.PW6/A. In sequel, it appears that, hence, there was dearth of or scanty evidence existing on record for both the learned Courts below to conclude that accused Jasbir Singh had enabled the effectuation of recovery of darat Ex.P-1 in a legally efficacious manner.
12. In aftermath, the factum of recovery of darat Ex.P-1 under memo Ex.PW6/A falls apart. Dehors the fact that the evidence on record omits to disclose the factum of accused Jasbir Singh having enabled the effectuation of recovery of darat Ex.P-1 at his instance, the factum that recovery memo Ex.PW6/A has remained unpreceded by a disclosure statement, leaves this Court to draw the following inferences, especially ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 10 coupled with the fact that the deposition of PW-6 upsurges an inference qua the frailties and infirmities gripping its recovery .
(a) accused Jasbir Singh was unaware of its place of keeping and hiding; (b) darat, Ex.P-1 being recovered 10/15 days after the occurrence, hence, was not recovered at his instance rather was planted by the Investigating Officer and that the accused was led to the place of its keeping and hiding, which was not in the exclusive knowledge of the accused rather was within the knowledge of the Investigating Officer. Consequently, it appears that even on that score the recovery of Ex.P-1 under recovery memo Ex.PW6/A having remained unpreceded by a disclosure statement made by the accused/revisionist Jasbir Singh before the Investigating Officer divulging therein the factum of the accused exclusively knowing the place of its concealment, keeping and hiding, boosts an inference that its recovery has not been effected in a legally efficacious manner.
In sequel, its recovery looses its potency and legal vigour.
13. Besides, the testimonies of PW-2 and PW-3, the purported eye witnesses to the occurrence, though unveil the ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 11 factum of the presence of the accused at the site of occurrence, nonetheless, their testimonies cannot ipso facto constrain this .
Court to nail the guilt of the accused, especially when the weapon of offence as purportedly attributed to the accused and witnessed to have been used by them, hence, for the reasons recorded hereinabove, having not been proved to have been efficaciously recovered at the instance of the accused.
Moreover, what tears apart the probative value of their testimonies is the fact that the Investigating Officer has omitted to collect the blood stained earth purportedly bearing the blood stains of the victim, for examination by the FSL. Omission on the part of the Investigating Officer to do so and consequently, the non rendition of an opinion by the FSL revealing the fact that the blood stained earth contained the blood group of the complainant/victim, hence, was the best evidence to conclude qua the presence of the accused at the site of occurrence, renders open a concomitant deduction that the aforesaid omission on the part of the Investigating Officer leaves the ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 12 testimonies of the eye witnesses to the occurrence to be discardable.
.
14. Even when PW-6 in his deposition on oath comprised in his cross-examination deposes that Ex.P-1 was blunt at the time of its recovery and now it appears to be subsequently sharpened, as a corollary, given the deposition of PW-6, witness to the recovery of weapon of offence, darat Ex.P-1, inasmuch as, its being blunt at the time of its recovery and it being, hence, not capable to inflict a deep incised wound as occurring on the body of the victim/complaint does also give leeway to the inference that, hence, the purported weapon of offence was blunt and it was not capable of causing injuries as noticed on the person of the victim, more so, when qua the aforesaid fact the learned APP has omitted to cross-examine this witness. In aftermath, the invincible conclusion is that even the eye witnesses to the occurrence have to be disbelieved qua the factum of accused/revisionists having been seen by them to have used the sharp edged weapon of offence to inflict the incised wound on the person of the victim. For the reasons ::: Downloaded on - 15/04/2017 17:41:56 :::HCHP 13 stated hereinabove the impugned judgments of the learned Courts below are gripped with the affliction of theirs carrying .
the taint of omitting to appreciate the relevant and admissible material on record, concomitantly, such omissions constitute them to be also ingrained with the vice of material irregularity and legal impropriety.
15. For the foregoing reasons, the revision petition is allowed and the judgments of the learned Courts below are set-
aside. Accused/revisionists are acquitted of the offences charged. Fine amount, if any, deposited by the accused/revisionists, be refunded to them. The case property i.e. darat, Ex.P-1 be destroyed after the expiry of the period of limitation. Bail bonds furnished by the accused/revisionists stand discharged. Records be sent back forthwith.
2nd March, 2015 (Sureshwar Thakur)
(Jai) Judge
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