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 a

person 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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