IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 159 of 2009
Reserved on : 24.9.2019
.
Date of decision 30.9.2019
State of H.P. …Appellant
versus
Vinod Kumar ….Respondent.
Coram:
For the appellant:
r to
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
Mr. Hemant Vaid Addl. A.G. with
Mr. Y.S. Thakur Mr. Vikrant
Chandel Dy. A.Gs.
For the respondent: Mr. Bhuvnesh Sharma, Advocate.
Sureshwar Thakur, Judge:
Accused Baldev Parkash, Ganesh Dutt, and,
accused Vinod Kumar, stood, charged, for, theirs committing
offences, punishable, under Section 452, 380, 323, 506, read
with Section 34, of, the Indian Penal Code, and, visavis, the,
afore framed charges, against, all the afore accused, the
learned trial Magistrate concerned, convicted accused Baldev
Parkash, and, accused Ganesh Dutt, for, the offences
1
Whether reporters of the local papers may be allowed to see the judgment?
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punishable under Section 323, 452, 566, read with Section 34
IPC, and, acquitted them, for, commission, of, an offence
punishable, under, Section 380 IPC. However, accused Vinod
.
Kumar, stood, convicted, for, the commission of offences
punishable, under, Section 323, 452, 506, 380 read with
Section 34 IPC, and, subsequently, in consonance therewith,
sentences stood imposed, upon, each of the afore convicts.
Convict Vinod Kumar, standing, aggrieved therefrom, preferred
an appeal before the learned Sessions Judge, Una, District
Una, H.P., and, the latter proceeded to reverse, the, verdict, of,
conviction, and, therewith sentence imposed, upon, convict
Vinod Kumar, hence, State of Himachal Pradesh, becoming
aggrieved therefrom, hence, proceeded, to, thereagainst
institute the instant appeal, before this Court. Conspicuously,
this Court, on 17.5.2017, visavis, Cr. Appeal No. 610 of 2008,
titled State of H.P. vs. Baldev Parkash, and, another hence
made, an, order, of, dismissal thereon (a) and, when the afore
appeal arose hereat, visavis, FIR No. 219 of 2002, and, when
the latter FIR bears similarity, visavis, the, FIR, in, the instant
appeal, (b) thereupon with this Court recording, an order,
rather dismissing, the, aggrieved State of H.Ps’. appeal directed
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thereagainst, (c) hence for maintaining consistency interse the
afore verdict pronounced, by this Court in Cr. Appeal No. 610
of 2008, and, hence in conformity therewith, this Court is
.
constrained, to, also dismiss, the, instant criminal appeal.
2. The testifications’ of the complainant/victims, and,
also of the eye witnesses, to, the illfated occurrence,
corroborates, the, version qua the occurrence, embodied in
F.I.R. Ext.PW8/A. Their respective testifications’ hence, do not,
suffer from any taint of theirs’ either improving, upon, or,
embellishing, upon, their respective previous statements,
recorded, in writing, (i) rather, when their respective
testifications, are, also bereft of any stains, of, any interse
contradictions, occurring, in their respective testifications,
hence their respective testifications warranted imputation, of,
credence thereto, (ii) however, the learned Sessions Judge, had
dispelled the vigor, of, their testifications, on the ground of the
Investigating Officer concerned “not” joining, as eye witnesses,
to the occurrence, the owner(s) of shops located, in, the closest
proximity, to, the site of occurrence, rather his joining PW1,
and, PW4, as purported eye witnesses to the occurrence, and,
whose testimonies, were, held, to, palpably acquire a taint of
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interestedness, arising from, the fact of theirs holding
acquaintance(s), with, the complainant/victim, (iii) nonetheless,
the aforesaid reason, as assigned, by the learned Sessions
.
Judge, for, pronouncing a judgment of acquittal, upon, the
accused, may not acquire any vigor, (iv) as, the, mere
interestedness of any ocular witnesses, to, the occurrence,
would not per se constrain a conclusion, that, their relevant
testified ocular versions, hence warranting disimputation, of,
credence, (v) “unless” the defence, had, during the course of
subjecting each of them, to, crossexamination “unearthed”
from them hence echoings, visavis, theirs’ being unavailable,
at, the site of occurrence, (vi) however, despite the aforesaid
witnesses standing subjected, to, the rigor, of, an exacting
crossexamination, their respective versions qua the
occurrence, as, unfolded in their respective examinationsin
chief, remained unshattered, visavis, the efficacy.
Consequently, the defence rather failed to establish, that, they
were unavailable at the site of occurrence, at the relevant time,
of its, taking place, (vii), hence, on score aforesaid, it is prima
facie difficult to accept, the, reasons assigned by the learned
Sessions Judge, that, their respective versions qua the
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occurrence, are, incredible, (viii) arising from the factum of
theirs holding leanings visàvis the accused, (ix) and, that
hence the Investigating Officer concerned, was enjoined, to,
.
associate as eye witnesses thereto, the owners, of, shops
located in proximity, to, the site of occurrence, (x) and, who
however may have lent a truthful, and, impartisan ocular
version qua the occurrence, (xi) omission whereof begetting an
apt inference qua the Investigating Officer, may be, conveying
in his apposite report, a, coloured unbelievable version qua the
occurrence, (xii) nonetheless, the genesis of the prosecution
version, does beget, a stain of untruthfulness, (xiii) significantly
when one of the coaccused Baldev Prakash, is, evidently a
witness, in, a case registered under Section 376 IPC against the
complainant PW1. The aforesaid evident fact of coaccused
Baldev Prakesh, standing cited, as a witness against the
victim/complainants “does” when construed, along with, the
Investigating Officer, omitting, to, associate as eye witnesses,
to, the occurrence, certain shopkeepers rather holding
commercial establishments, in, close proximity, to, the site of
occurrence, rather, his associating PW2, and, PW4, as
purported eye witnesses to the occurrence, who, however hold
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leanings viaavis the victims/complainant, arising, from, the
factum of theirs holding, a, close acquaintance with them, (xiv)
hence garnering an inference, that, a stained/coloured version
.
qua the occurrence, being embodied, in the apposite F.I.R. (xv)
also a stained version qua it standing testified, by the
victims/complainant, and, also by, the, purported eye
witnesses thereto, who, deposed as PW2, and, as PW4, qua
therewith.
3. The learned Additional Advocate General, has,
contended, that, the MLC borne on Ext.PW9/A, exhibit
whereof, standing proven by PW9, and, also with the latter, in
his testification, deposing, that the injuries reflected therein,
being causeable, by user of Dandas, recovered under Memo
Ext.PW1/B, hence ought to constrain a conclusion, that,
dehors infirmity, if any, gripping, the testifications, of, the
victims besides, of, PW2, and, of, PW4, yet, therethrough, the
prosecution succeeding in establishing the charge.
4. The mere factum, of, proof of injuries, comprised in
Ext. PW9/A, hence by the latters’ author, and, also his
testifying, that, their occurrence, on, the respective persons, of,
the victims/complainant, being sequelable by user, of, Danda,
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borne, in, Ext.PW1/B, does not perse enhance any
conclusion, that, the prosecution, has, succeeded in proving,
that, dandas Ext. P1 and P2, were used by coaccused
.
concerned, for delivering blows, on, the respective persons, of,
the victims/complainant. Contrarily when, for, reasons
assigned above, rather the effect, of, the aforestated inference,
that, the testifications of PW2, and, of PW4, rather acquiring
a pervasive taint of inveracity, is, construed hence with the
prosecution also for reasons assigned hereafter, rather not
proving, the, factum of effectuation recovery of Ext. P1, and, of
Ext. P2, exhibits whereof, are, respectively, the, Dandas, and,
stolen cash worth Rs. 3000/, thereupon an inference,
becoming bolstered, qua the prosecution, rather, contriving to
falsely implicate, the, accused (a) the recitals embodied in Ext.
PW1/B, make a disclosure qua the complainant handing over
dandas, to, the Investigating Officer concerned, (b) however,
therein there, is, no reflection qua the date whereon he handed
over Dandas, to, the Investigating Officer rather at the end of
Ext. PW1/B the Investigating Officer makes an endorsement
qua the aforesaid mode of handing over the Dandas rather
occurring, on, 14.10.2002, (c) since Ext. PW1/B was
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throughout, in the custody, of, the Investigating Officer
concerned hence, the latter, the end of Ext. PW1/B, appears to
have recorded an endorsement qua his preparing Ext. PW1/B,
.
on 14.10.2002, (d) whereas for obtaining a firm conclusion
therefrom qua its preparation occurring, on 14.10.2002, by the
Investigating Officer concerned, an apposite therewith recital,
was, also enjoined to be embodied therein, (e) and, also the
signatories thereto were enjoined, to, under their respective
signatures occurring therein, make, an endorsement, qua it,
standing prepared, on 14.10.2002, (f) however, the aforesaid
relevant endorsements, do not, visibly occur in Ext. PW1/B, (g)
hence, it is to be concluded that the Investigating Officer
concerned, through sheer contrivance, introducing Dandas, as,
purported weapons of offence, with user whereof, the co
accused inflicted injuries, on, the person of victims/
complainant, (h) moreso, when, with respect to the date, of,
preparation of Ext.PW1/B neither PW1 nor PW4 makes any
unequivocal apposite communication, (i) even otherwise,
Dandas Ext.P1 and P2 are the incriminatory pieces, of,
evidence against the accused respondents. Normally, the,
recovery of any weapon of offence, has to occur within, the,
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domain of Section 27, of, the Indian Evidence Act, provisions
whereof stand extracted hereinafter:
27. How much of information received from
.
accused may be proved.–Provided that, when
any fact is deposed to as discovered in
consequence of information received from aperson accused of any offence, in the custody of
a police officer, so much of such information,whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered,
may be proved.
(i) wherein for any effectuation of recovery of any weapon, of,
offence hence at the instance of the accused, by, the
Investigating Officer concerned, to, hence acquire statutory
vigor, (ii) enjoins the Investigating Officer concerned to,
preceding his making, the, relevant recoveries, rather record a
disclosure statement, of, the accused concerned, (iii) however,
the Investigating Officer neither within the precincts of Section
27, of, the Indian Evidence Act, recorded any disclosure
statement, of any of the accused concerned nor he proceeded to
subsequent thereto hence effect, the, relevant recoveries, (iv)
contrarily he, for reasons aforestated inefficaciously/fictitiously
prepared Ext. PW1/B, by recording a recital therein qua the
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victims/complainants, rather, handing over Dandas, to him, (v)
the aforesaid incriminating piece(s) of evidence against the
accused, stand canvassed, by the learned Deputy Advocate
.
General, to be, not warranting hence disimputation, of, any
credence thereto nor also it being open for this Court, to
discard, their probative vigor, (vi) as the accused after using
them left them, at the site of occurrence, whereafter they fled
therefrom, (vii) hence, he contends, that, when the
victims/complainant proceeded, to, handover the dandas, to,
the Investigating Officer concerned. He also proceeds to
contend, that, since the Investigating Officer concerned ‘not’
within the domain of Section 27, of, the Indian Evidence Act,
effectuating their recovery, (viii) hence there was no legal
necessity, cast upon him, to obey its mandate nor hence on its
mandate standing infringed, rather would give any capital, to,
the accused, (ix) however, the aforesaid submission warrants
rejection, as the aforesaid manner of effectuation of recovery,
of, purported weapon(s) of offence, appears to be made, by the
Investigating Officer concerned, by his, actively circumventing
the mandate, of, Section 27 of the Indian Evidence Act, (x)
whereas, with the aforesaid weapons of offence rather
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comprising, the, incriminating pieces of evidence also when,
qua, recovery thereof, the, apt provisions, are, encapsulated in
the relevant Indian Evidence Act, (xi) hence he was enjoined, to
.
for, dispelling, any, arousal of suspicion, with, respect to the
efficacy, of, the relevant recovery, (xii) hence revere, the,
mandate thereof, rather than his proceeding, to, engineer an
ingenious method, to proceed to make recovery, of, weapon(s),
of, offence in the manner, he did, under memo Ext. PW1/B.
Consequently, with this Court concluding that recovery of
Dandas not holding any vigor, it is apt to conclude that the
prosecution, has failed, to establish, that, the Dandas, were
used, by the accused concerned, to inflict blows, on, the
victims/complainants.
5. Be that as it may, the vigor of Ext. PW1/D,
whereunder, recovery of cash holding, a, value, of, Rs. 3000/,
stood, purportedly effectuated, and, recovery whereof is
disclosed to occur, on, coaccused Baldev Parkash, handing
over, the sum of Rs. 3000/ at police chowki, is also to be
tested. In case this Court concludes, that, Ext. PW1/D, is
fictitiously prepared, then the entire genesis of the prosecution
version, as, comprised in F.I.R. rather would stand completely
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shattered. Ext. PW1/D does not echo the date of its
preparation. The accused came to be arrested on 14.10.2002,
hence when, during, the, course of the custodial interrogation,
.
of, the accused concerned, the Investigating Officer concerned,
could well, have elicited, a, confession, with respect to his
hiding or concealing a sum of Rs. 3000/, as, stood allegedly
stolen, by, him from the cash box, of, the victim/complainant,
yet, he appears to have not elicited, the, aforesaid confession,
from, the accused, rather he appears, to, have engineered, the,
preparation of Ext. PW1/D. Consequently, it is difficult to
accept all, the, communications occurring therein, especially
with coaccused concerned, being arrested, on the date of
occurrence, yet his proceeding to walk, upto, the Chowki and
handing over Rs. 3000/, to, the Investigating Officer. In
aftermath, it appears, that, with critical inveracity also gripping
the preparation, of, Ext. PW1/D, hence no reliance can be
placed thereupon.
6. For the reasons which have been recorded
hereinabove, this Court holds that the learned, Sessions Judge,
has appraised the entire evidence on record in a wholesome
and harmonious manner, apart therefrom, the analysis, of, the
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material on record, by, the learned Sessions Judge, does, not
suffer from any perversity or absurdity, of, misappreciation,
and, of, non appreciation of evidence on record, rather it has
.
aptly appreciated the material available on record.
7. In view of the above, I find no merit in this appeal,
which is accordingly dismissed. In sequel, the impugned
judgment, is, affirmed, and, maintained. Records be sent back
forthwith.
(Sureshwar Thakur),
30 September, 2019
th
Judge.
(kck)
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