Himachal Pradesh High Court
Pramod Kumar Alias Golu vs 2. Cr. Appeal No. 82 Of 2018 on 24 November, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 80 of 2018 a/w Cr. Appeal No. 82 of 2018.
.
Reserved on: 11th November, 2020.
Decided on: 24th November, 2020.
1. Cr. Appeal No. 80 of 2018.
Pramod Kumar alias Golu ...Appellant.
State of H.P. r to
Versus
2. Cr. Appeal No. 82 of 2018.
...Respondent.
State of H.P. ...Appellant.
Versus
Sandeep Kumar & another ...Respondents.
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes. For the Appellant(s):Mr. Karan Singh Kanwar, Advocate in Cr. Appeal No. 80 of 2018.
Mr. Hemant Vaid, and, Mr. Hemanshu Mishra, Additional Advocates General in Cr. Appeal No.82 of 2018.
::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 2For the Respondent(s): Mr. Hemant Vaid, and, Mr. Hemanshu Mishra, Additional Advocates General in Cr. Appeal No.80 of 2018.
Mr. Karan Singh Kanwar, Advocate .
in Cr. Appeal No.82 of 2018_________________________________________________ Sureshwar Thakur, Judge Accused Pramod Kumar, Sachin Kumar, and, accused Sandeep Kumar, all became charged, and, tried for commission of offences punishable under Section 302 of the IPC read with Section 34 of the IPC.
Through, a verdict made on 6.10.2017, upon, Sessions Trial No.11-N/7 of 2016, by the learned Additional Sessions Judge, Sirmaur District at Nahan, he made a verdict of conviction, upon, co-accused Pramod Kumar, alias Golu, whereas, he recorded a verdict of acquittal, upon, co-accused Sandeep Kumar, and, co-accused Sachin Kumar. In consequence therewith, he proceeded to impose, upon, convict Pramod Kumar alias Golu, sentence of life imprisonment, and, also imposed upon him fine of Rs.20,000/-, vis-a-vis, the afore drawn charge against him, and, in default of payment of fine amount, he sentenced him to undergo ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 3 simple imprisonment extending upto a period of six months.
2. The afore Pramod Kumar became aggrieved .
from the verdict of conviction recorded, upon, him by the learned trial Court, and, through his constituting herebefore Criminal Appeal No. 80 of 2018, he strives to beget reversal of the verdict of conviction, and, of the afore consequent therewith sentences imposed, upon him, by the learned trial Court.
3. Furthermore, the State of H.P. also becomes aggrieved from the verdict of acquittal made upon co-
accused Sandeep Kumar, and, Sachin Kumar, vis-a-vis, charges drawn against them, for the offence punishable under Section 302 read with Section 34 of the IPC, and, it through constituting herebefore Criminal Appeal no.82 of 2018, strives to beget reversal, of, the verdict of acquittal made, upon, the afore accused. Since, both the criminal appeals, emanate from a common verdict recorded, on, 6.10.2017, upon, Sessions Trial No. 11-N/7 of 2016, by the learned trial Court, thereupon, both the afore ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 4 criminal appeals are amenable for a common verdict becoming recorded thereons.
4. The genesis of the prosecution, is, .
embodied in a statement made by one Sandeep Kumar, statement whereof, becomes embodied in Ex.PW4/A. Therein, the maker thereof, echoes that on 23.10.2015, after his being relieved from duty, from his work, his along with Jai Singh, proceeding to Gondpur, and, both, from a liquor vend, located thereat purchasing liquor, and, thereafter, for, theirs consuming it, theirs proceeding to a hotel. He proceeds to narrate therein, that during the course of, theirs sitting at a hotel located at Gondpur, three boys astride a motorcycle bearing No. HP-17A-3433, making their arrival at the afore hotel, and, theirs also proceeding to consume liquor thereat. He, in Ex.PW4/A, named the afore persons to be Pramod Kumar son of late Shri Bansi Lal, as well as Sandeep Kumar, and, Sachin Kumar, residents of Vyas. At about 8.15 or 8.30 p.m., on 23.10.2015, he articulates therein, qua some altercation erupting inter se Jai Singh, and, the afore named persons, and, the afore ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 5 altercation escalating, and, leading, to, all the afore, proceeding, to a site, outside the hotel, facing the liquor vend, and, more specifically to the place, .
whereat the afore had parked their motorcycle. At the afore place, all co-accused are narrated to belabour Jai Singh, and, during the course of the afore belabourings, he unfolds, in Ex.PW4/A, vis-a-vis, co-
accused Pramod Kumar, striking a knife blow, on the abdomen of Jai Singh, and, thereafter all of them leaving the site of occurrence. After the blow of knife, being struck by co-accused Pramod Kumar, on the abdomen of Jai Singh, he narrates that therefrom profuse oozing of blood occurring. Furthermore, he narrates that one Kuldeep Singh, Raj Kumar, and, Kashmiri Singh, and, others also making their arrival at the site of occurrence. The afore Jai Singh, is, disclosed to be brought to Civil Hospital, Poanta Sahib, for his receiving treatment of injuries, occurring on his abdomen, and, thereat, the, Medical Superintendent concerned, declaring him dead. In pursuance to Ex.PW5/A, a formal FIR, borne in Ex.PW4/B, became recorded at Police Station, Poanta Sahib. During the ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 6 course of investigations, site plan embodied in Ex.PW5/B, was prepared by the Investigating Officer.
5. The maker of Ex.PW4/A, namely, Sandeep .
Kumar, stepped into the witness box as PW-12, and, during the course of his examination-in-chief, he spoke in completest tandem, vis-a-vis, the echoings occurring in Ex.PW4/A. He has also made vivid narrations that Ex.PW4/A carries his signatures.
However, during the course of his cross-examination, being conducted by the learned defence counsel, an attempt, was made by the latter, to ensure unearthings from him, vis-a-vis, his being unaware of the names, and, identities of the accused, and, thereupon he strived, to, erect an edifice, that hence the naming of accused in Ex.PW4/A by PW-12, being surmisal. Obviously therefrom he also attempts to strike an inference, that there, was, an imperative necessity cast, upon, the Investigating Officer, to, prior to the identification, if any, made in Court of the accused, by PW-12, hence, hold a valid test identification parade, and, his also ensuring the participation therein, of the accused, and, of PW-12, ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 7 for thereafter, the, latter being fully capacitated, to,
(a) carry in Ex.PW4/A the names of the accused, as incriminatory participants in the charged offences; (b) .
and, also for, his hence being obviously capacitated to render any purported credible account, vis-a-vis, the occurrence, and, besides for his being enabled, to, ascribe therein rather any incriminatory participation, of, the accused, in the relevant occurrence.
6. However, the afore submission, though, does prima facie beget its being jettisoned, from (a) despite PW-12, in his examination-in-chief proving his authoring Ex.PW4/A, wherein, the names of all the accused, become vividly pronounced, yet the learned defence counsel omitting to obtain, during his conducting cross-examination, upon him, any striking, and, pointed elicitation, hence, for belying the afore recital, as, becomes carried in Ex.PW4/A. Contrarily, with PW-12, during the course of his cross-
examination, denying a suggestion hence meted to him, vis-a-vis, his not making Ex.PW4/A, (b) thereupon, unless further evidence exists on record, in display that in contemporaneity, vis-a-vis, the making of ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 8 Ex.PW4/A, the maker thereof, concocting or inventing the incriminatory participation of the accused, in, the charged offence(s), (c) and, in further display qua the .
afore concoction becoming sparked from the defence rearing, and, also proving through adduction of cogent evidence, the espouseable plea of alibi, whereas, the afore exculpatory evidence being amiss, (d) thereupon, the effect of PW-12, hence remaining unshattered, even during the course, of, an exacting cross-examination, as became conducted upon him, by the learned defence counsel, is, qua the factum as borne in Ex.PW4/A, and, appertaining to the named therein incriminatory participation of the accused, in, the relevant occurrence, rather becoming founded upon, his awareness about the names, and, identities, of, the accused, and, further corollary thereof being (i) there was no necessity cast upon the Investigating Officer to, prior to the identification in Court, if any, made by PW-12, to, ensure, the, holding of a valid test identification parade, wherein the accused, and, PW-
12 also participated.
::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 97. Be that as it may, strengthened vigour to the afore inference, becomes derived from the factum of PW-12, during, the course of his cross-examination, .
denying the factum of Ex.PW4/A becoming not recorded at the site, and, thereupon, the defence counsel became cast with, an, imperative necessity to dispel the effect of the afore denial, (a) and, though he has strived to dispel the efficacy, of, the afore denial, through, his ensuring from PW-12 hence an affirmative echoing, vis-a-vis, in contemporaneity to the occurrence, his being unaware of the names, of, the accused, and, rather his learning about their names, upon, his reading a news item, as became published, in a daily newspaper. However, the afore afore made striving hence to belittle the efficacy of the disclosures, of, the accused's names, by PW-12 in Ex.PW4/A, exhibit whereof, has been thoroughly proven by him, also does not assume any apt exculpatory vigour, (b) inasmuch, as, the effect thereof becomes rid, vis-a-vis, its efficacy, upon, thereafter the learned Public Prosecutor, upon, re-
examining, PW-12, rather his ensuring, the, afore PW-
::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 1012 making voicing(s) therein qua his disclosing the afore factum to the police, in contemporaneity, vis-a-
vis, his recording Ex.PW4/A, (c) and, also from the .
factum of his during the course of his re-examination, persevering to maintain, the, earlier thereto made testification, wherein, he has made an explicit, and, candid voicing, vis-a-vis, his disclosing, in his statement, embodied in Ex.PW4/A, the names of the accused, as incriminatory participants, in, the charged offences. The afore made echoing(s) by PW-12, during the course of his being re-examined, by the learned Public Prosecutor rather for scuttling the effect(s) of the afore elicited echoings, as became unearthed from him, by the learned defence counsel, would be construable, to an inefficacious, and, also an unfruitful recoursing, only upon the names of the accused not becoming borne, in Ex.PW4/A, as incriminatory participants in the charged offences. However, since in Ex.PW4/A, the names of accused occur rather with the completest explicity, besides with utmost candour, as, incriminatory participants in the relevant charged offences, (i) thereupon, the effect if any, of the learned ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 11 defence counsel, during the course of cross-
examination, of PW-12, being successful in unearthing from him any elicitation, vis-a-vis, his learning about .
the names of the accused, upon, his reading a news item, appertaining to the incident, hence, published in a news paper, reiteratedly carries no apposite exculpatory effects.
8. Furthermore, even thereafter the learned defence counsel r proceeded to conduct cross-
examination, upon, PW-12, and, therein strived to make affirmative suggestion(s) to him, carrying echoings, qua the answers elicited from PW-12, during the course of his re-examination, being correct, and, whereto an affirmative answer became meted, (i) consequence thereof, is, thereupon, the defence acquiescing, vis-a-vis, the naming of the accused, in Ex.PW4/A, by PW-12, as, incriminatory participants in the charged offences, carrying an entrenched flavour, of, veracity, and, truthfulness, (ii) and, the further corollary thereof being, vis-a-vis, the Investigating Officer becoming not cast, with any dire necessity to, prior to the making of Ex.PW4/A, by PW-12, hence, ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 12 conduct a valid test identification parade, and, nor he became enjoined to ensure, the, participations therein, of the accused, and, of PW-12, nor also identification, .
if any, of the accused , in Court, by the ocular witnesses to the occurrence, can become concluded to be either faltering or not carrying any evidentiary credit.
9. Moreover, amplifying vigour to the afore made inference, becomes acquired from the factum, of, the learned defence counsel, upon, conducting cross-examination, upon, the Investigating Officer concerned, who stepped into the witness box, as PW-
15, meteing an affirmative suggestion to him, with echoings, that the eruption, of an altercation, at the relevant site of occurrence, being not premeditated rather happenings thereof being sudden, and, when thereto, an affirmative answer became meted by PW-
15, (i) thereupon obviously therethrough, the defence also becomes inferred, to, acquiesce to the incriminatory participation of the accused, in the relevant occurrence, inasmuch, as, therethrough the defence, strives to capitalize, upon, the exception(s), ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 13 to, Section 300 of the IPC, (ii) inasmuch, as, the accused being amenable for being convicted or sentenced rather for an offence, of, culpable homicide .
not amounting to murder, than for an offence, of, culpable homicide amounting to murder. In addition thereto, when thereafter the learned defence counsel, upon, conducting cross-examination, upon, PW-12, has made a disaffirmative suggestion to him, for falsifying the user by co-accused Pramod Kumar, of knife, Ex.P-
4, upon, the stomach of deceased Jai Singh, and, whereto a denial, emanated from PW-12, (iii) thereupon, also it become deducible that therethrough, the defence attempts, to negate the ascriptions by the prosecution to co-accused Pramod Kumar, of his using knife, Ex.P-4 hence to deliver a blow thereof, upon, the abdomen of deceased Jai Singh, and, also hence obviously, the defence acquiesces to the incriminatory participation, of, co-
accused Pramod Kumar, excepting his delivering, a fatal blow, with user of knife, Ex.P-4, recovered through memo Ex.PW1/A, upon, the abdomen of deceased Jai Singh. Reiteratedly hence the ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 14 incriminatory participation, of, the accused become acquiesced by the defence, whereupon, fortified vigour becomes added to the testification of PW-12.
.
10. Apart from the afore credible account rendered qua the occurrence, by PW-12, the prosecution, for proving the charges drawn against co-
accused Pramod Kumar, and, also for proving qua belabourings becoming meted, through, delivering, of, kick blows by co-accused Sandeep Kumar, and, Sachin Kumar, upon deceased Jai Singh, has led into the witness box PW-13, Raj Kumar, and, in his examination-in-chief, he has made echoings, carrying the completest tandem, and, obviously carrying rather the utmost corroboration, vis-a-vis, the testimony rendered by PW-12, (i) thereupon, with inter se corroboration being meted by PW-12, and, PW-13, vis-
a-vis, the charged offences, (ii) thereupon, this Court becomes constrained to not reverse the findings, of, guilt recorded against co-accused Pramod Kumar.
11. Even though, during the course of his cross-
examination, PW-13, despite, in his previous statement recorded in writing, his naming, all the ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 15 accused to be incriminatory participants in the relevant charged offences, yet his identifying in Court only co-accused Pramod Kumar, and, his not .
identifying in Court, the other co-accused, (i) thereupon, the learned Public Prosecutor after permission being granted, to him, by the learned trial Court, to cross-examine PW-13, has succeeded, upon, his confronting him, with his previous statement recorded in writing, rather for belying the testified factum of his not disclosing therein, the names of all the incriminatory participants, in the relevant occurrence, hence, in obtaining elicitations, from, him, vis-a-vis, therein his naming all the accused, as, incriminatory participants, in, the relevant occurrence.
(ii) Besides when in the cross-examination, as, made upon him, by the learned Public Prosecutor, he has proceeded to identify all the accused, to be, the apposite assailants, and, thereafter with the learned defence counsel rather remaining unsuccessful, in belying the afore factum, excepting his eliciting from him qua his learning about the names of the accused, on the subsequent day, (iii) and, when as aforestated, ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 16 when through PW-12, the prosecution, has succeeded in proving, the, knowledge of PW-12, vis-a-vis, the names, and, identities of the accused, in .
contemporaneity, vis-a-vis, the happening(s), of, the occurrence, (iv) thereupon, the knowledge, if any, acquired by PW-13, vis-a-vis, the identity of the accused in the relevant occurrence, can be construed to arise, from his learning, rather on the subsequent day, about the names, and, identities, of, all the accused. Consequently, the acquisition of knowledge by PW-13, of the names, and, identities of the accused, in contemporaneity, vis-a-vis, his previous statement becoming recorded in writing, cannot be faulted, on any valid evidentiary touchstone, and, strikingly, and, most emphatically, when, in his cross-
examination, by the learned Public Prosecutor, he irrefutably identified the accused present in court, to be the incriminatory participants, in, the relevant occurrence.
12. Moreover, the prosecution, was also enjoined to ensure eruption of firm medical evidence, making pointed displays, about inter se corroboration ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 17 inter se the adduced medical evidence, and, the afore alluded credible ocular accounts, rather ascribing incriminatory participation of the accused in the .
charged offences. In the afore endeavour, the prosecution depended, upon, the testimony of PW-10, who authored Ex.PW10/A, exhibit whereof, is, the postmortem report, hence, prepared by him, in consequence of his conducting autopsy upon deceased Jai Singh.
r During the course of his examination-in-chief, PW-10, proved his authoring Ex.PW10/A, and, also proved the hereinafter extracted injuries occurring, upon, the body of deceased Jai Singh, whereons, he conducted autopsy:-
"There is stab wound on the ant abd wall on the lt.
Side 9 CM below the coastal margin 2.8 cm long, ½ cm width, 11 cm deep, margins are clear cut well defined. There is lot of blood in abdominal cavity, the small intestine at the dudenum half cut and ingested half digested food in the abdominal cavity."
Moreover, during the course of his examination-in-
chief, knife, Ex.P-4, after its becoming retrieved, from a sealed cloth parcel, became shown to him, and, he ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 18 ascribed the injuries echoed in ex.PW10/A to be causable, upon, the body of deceased Jai Singh, hence, with the users thereon, of, Ex.P-4. However, .
despite the afore firm echoing carried in the examination-in-chief of PW-10, the learned defence counsel omitted to negate, the apposite incriminatory effects thereof, through, his conducting any apt cross-
examination, upon, PW-10. The apt corollary thereof, is, vis-a-vis, therethrough the prosecution, proving the apt inter se connectivity inter se the medical evidence, and, the afore alluded credible ocular account, rendered, vis-a-vis, the charges drawn against accused Pramod Kumar.
13. Despite, the afore incriminatory evidence emerging against the accused, yet the prosecution became also enjoined to adduce credible evidence, of, immense evidentiary vigour, hence, personificatory, vis-a-vis, knife, Ex.P-4, becoming recovered, in, the statutorily ordained manner. In the afore endeavour, the prosecution has depended, upon, Ex.PW2/A, exhibit whereof is a disclosure statement hence made by accused Pramod Kumar, and, whereons, his ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 19 unchallenged signatures exist, (i) whereins, he speaks about the place of his hiding, and, camouflaging , Ex.P-4, and, also evinces therein, his willingness to .
ensure its recovery, to the Investigating Officer concerned. Since, subsequent to the making of Ex.PW2/A, recovery of Ex.P-4, became effectuated through memo borne in Ex.PW1/A, and, with thereons also, the, unchallenged signatures of accused Pramod Kumar becoming borne, thereupon, the sequeling effects thereof are (a) the prosecution through adducing proof of valid drawings of both the afore memos, through, its leading into the witness box, the marginal witnesses thereof, inasmuch, as, PW-1 Sandeep Gupta, PW-2 Dev Dutt, PW-3 Harish Kumar, PW-4, C. Jagar Singh, all of whom, did not contest the authenticity, of, their signatures borne thereons, (b) obviously thereupon, they prove the user of knife, Ex.P-4 by co-accused Pramod Kumar, upon, the abdomen of deceased Jai Singh, (c) and, whereupon, there occur(s) inter se corroborations inter se the drawing of the afore memos, and, with the testified ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 20 credible ocular accounts, besides with the medical evidence, as, become(s) adduced by the prosecution.
14. Nowat, though this Court has drawn, an, .
unfliching conclusion, about the incriminatory participation of co-accused Pramod Kumar, in the charged offences, however, despite other co-accused along with, him, inasmuch, as, co-accused Sandeep Kumar, and, Sachin Kumar, being charged with an inculpable vicarious liability, constituted under Section 34 of the IPC, and, as becomes sparked, from theirs evidently accompanying, the principal accused Pramod Kumar, at the site of occurrence, (a) also despite evidence making clear voicings, appertaining to both the afore co-accused, namely, Sandeep Kumar, and, Sachin Kumar, delivering kick blows, upon, the body of the deceased, (b) nonetheless, merely for any lack, of knowledge of the afore, about principal accused Pramod Kumar, rather possessing or wielding knife, EX.P-4, and, whereafter he struck, its fatal blow, upon, the abdomen of deceased Jai Singh, (c) would not, on anvil of the statutory mandate errecting, the, arch, of, inculpable vicarious criminal liability, either ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 21 render them segregable from the apposite thereto charges hence drawn against them, nor merely for theirs holding any lesser incriminatory role, than, .
ascribed by the prosecution, to co-accused Pramod Kumar, (d) this Court would become constrained, to not draw any conclusion, vis-a-vis, theirs rather alongwith principal co-accused Pramod Kumar, hence, carrying a joint mens rea, for committing, the, offence constituted under Section 302 of the IPC.
r The propellant reason, for, forming the afore conclusion, becomes fomented from the clinched factum, of, evidence existing on record, rather being suggestive, vis-a-vis, theirs not acting, as, apt dissuasive forces, upon, principal co-accused Pramod Kumar. The conspicuous, effect, of, wants of the afore evidence, is, vis-a-vis, theirs through meteing belabourings, upon, deceased Jai Singh, hence, facilitating principal co-
accused Pramod Kumar, to proceed to inflict, a, fatal blow, with user of knife, Ex.P-4, upon, the abdomen of deceased Jai Singh.
15. In aftermath, the principle, of, inculpable vicarious criminal liability, as becomes enshrined in ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 22 Section 34 of the IPC, becomes completely attracted against co-accused Sachin Kumar, and, Sandeep Kumar, thereupon, there was no occasion for the .
learned trial Court, to, merely, upon, anvil of theirs not inflicting a fatal blow of knife, Ex.P-4, upon, the abdomen of deceased Jai Singh, hence, proceeds to record an order of acquittal, upon, them. Significantly also when they, too, along with principal accused Pramod Kumar, fled from the site of occurrence, hence, personified conduct inconsistent with their innocence.
16. For the foregoing reasons, Criminal Appeal No. 80 of 2018, instituted by co-accused Pramod Kumar, is, dismissed, whereas, Cr. Appeal No.82 of 2018, instituted by the State, against, the, acquittal of co-accused Sachin Kumar, and, Sandeep Kumar, is allowed. Consequently, the verdict impugned before this Court, so far as, it acquits co-accused Sachin Kumar, and, Sandeep Kumar, for the charges drawn against them, is interfered with, and, to that extent the impugned verdict is set aside, whereas, the verdict impugned before this Court, so far as it convicts and ::: Downloaded on - 25/11/2020 20:20:51 :::HCHP 23 sentences the principal accused Pramod Kumar, is affirmed and maintained. Accordingly, co-accused Sandeep Kumar, and, Saching Kumar are convicted for .
the offence punishable under Section 302 of the IPC, read with Section 34 of the IPC. They be produced before this Court on 09.XII.2020 for theirs being heard on the quantum of sentence.
r to (Sureshwar Thakur)
Judge
(Chander Bhusan Barowalia)
Judge
24th November, 2020.
(jai)
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