Mahavir vs State of H.P.

Sureshwar Thakur, J.

1.The instant appeal stands directed against the judgment rendered on 10.04.2015 by the learned Sessions Judge (Forest), Shimla, H.P. in Sessions

trial RBT No. 34-S/7 of 2013, whereby, the learned trial Court, convicted the accused /appellant herein, for his committing an offence punishable

under Section 307 of the IPC, and, sentenced him to undergo rigorous imprisonment for five years, and, to pay a fine of Rs.20,000/- and in default of

payment of the fine amount, his further undergoing simple imprisonment for one year.

2.The facts relevant to decide the instant case are that the police was set in motion in pursuant to recording of statement of Jagdish Chand under

Section 154 of the Cr.P.C., alleging that he is working in Shop No.3, situated at New Bus stand Tuti Kandi, Shimla as Salesman along with Chirag. On

30.04.2012, the complainant along with Chirag closed the outlets at about 10.30 p.m. and at that time one Anurag, who was working as security guard

at ISBT, also joined them. They went o Local Bus Terminal and found that last bus towards Shimla town had already departed. As such, al of them

started proceeding towards Shimla town on foot via Tutikandi crossing. At about 11.35 p.m., when they reach near RTO Office, he saw a car going

towards Shimla, they signalled it to stop but the car did not stop and at the same time a white coloured vehicle car from Shimla side and stopped near

him. The driver of the said vehicle came out and started kicking him by asking him why they were stopping the vehicles in the middle of the road. In

the meanwhile, other occupants of the vehicle also came out and on seeing them, complainant and Chirag started running away, but the accused

persons caught hold of Anurag and gave beatings to him. Thereafter, they boarded in the same vehicle and fled away from the spot. When the

complainant and Chirag came towards Anurag, he while crying disclosed that the persons who gave beatings to him also stabbed him on the stomach.

The blood was oozing out from the stomach of Anurag and the food pipe was also came out. He requested his maternal uncle to inform 108

Ambulance. After sometime, police Ambulance came to the spot and Anurag was brought to IGMC, Shimla. The accused persons, who gave beatings

are not known to him and to Chirag. They also did not notice the number of the vehicle but he could recognize those persons by face. Neither he, nor

Chirag sustained any injuries in this occurrence. Only Anurag sustained stab injuries on his stomach. Had the Chirag not been brought immediately tot

he hospital, he would have died. On  the aforesaid statement of the complainant, FIR was lodged in the police station concerned. Thereafter police

completed all the codel formalities.

3.On conclusion of investigation(s), into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal

Procedure, was prepared, and, filed before the competent Court.

4.The accused stood charged by the learned trial Court, for, theirs committing offence(s) punishable under Sections 326, 307 read with Section 34 of

the IPC. In proof of the prosecution case, the prosecution examined 18 witnesses. On conclusion of recording of the prosecution evidence, the

statements of the accused under Section 313, of, the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused

claimed innocence and pleaded false implication in the case.

5.On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction only against the accused/appellant herein,

whereas, it acquitted other co-accused.

6.The appellant/convict, stands, aggrieved by the judgment of conviction recorded against him, by the learned trial Court. The learned counsel

appearing for the appellant/convict has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court,

standing not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the

material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction, and,

theirs standing replaced by findings of acquittal.

7.On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction

recorded by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not

necessitating any interference, rather theirs meriting vindication.

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.PW-12, Dr. Sandeep Kaushik, who subjected one Anurag to medical examination, upon stepping into the witness box, has, proven the apposite

MLC, borne in Ex.PW12/B. He has testified of the injuries noticed by him, to be occurring, on the person of the injured, injuries whereof stand borne

in Ex.PW12/B, being causable with a blow of knife, knife whereof also stood shown to him in Court. He denied the suggestion put to him, by the

defence counsel, while holding him, to cross-examination, of the injuries borne in Ex.PW12/B, being causable by fall, on some sharp edged object.

However, the testification of the doctor, who examined injured/victim Anurag, is also enjoined to be lent corroboration, by the eye witnesses, to the

occurrence. The eye witnesses to the occurrence, are, PW-1 Jagdish Chand, and, PW-3 Chirag. Both of whom in their respectively rendered

testifications, make, articulations, bereft, of any inter se or intra se contradictions, thereupon, with theirs rendering unblemished, and, untainted

versions, qua the occurrence, thereupon, sanctity is enjoined to be imputed vis-a-vis their respective testifications. However, the learned counsel

appearing for the appellant has contended (a) that, with, occurrence(s), in the testifications of PW-1, and, of PW-3, of, a communication, that during

the course of theirs being belaboured by the accused, one Anurag making intervention(s), whereupon, the accused directing their assault upon Anurag,

and, whereafter both aforesaid fleeing from the spot. (b) Thereupon, the trite factum of the occurrence being eye witnessed by PW-1 and PW-3, is

obviously hence belied (c) whereupon, he canvasses, of the charge vis-a-vis the accused, with, respect to his delivering, upon, one Anurag, the injuries

borne in Ex.PW12/B also remaining unproven. However, the effect, of any, of the aforesaid espousal is countervailed, by the factum of, one, Anurag

immediately subsequent, to his being delivered a knife blow, on his stomach, by the accused, his fleeing upto Shiv temple, whereat, both PW-1 and

PW-3 were sitting, wheretowhom, he disclosed the aforesaid factum. The aforesaid unfoldment, by, one Anurag vis-a-vis PW-1, and, PW-3, rather

hence occurring in quick spontaneity vis-a-vis his receiving stab of knife on his stomach, and, stabbing whereof is testified to be meted by the accused,

remains unshattered, by any effective suggestion, being put, by the learned defence counsel, while holding the aforesaid prosecution witnesses, to

cross-examination, and, with clear and candid echoing(s) therein, (d), of, at the relevant spot, after departure therefrom, of PW-1 and PW-3, persons

other than the accused, being present thereat, and, theirs rather inflicting a knife blow, on the stomach of one Anurag. Absence of meteing(s), of, the

aforesaid suggestions, by the learned defence counsel, while holding the eye witnesses vis-a-vis the occurrence, to cross-examination, rather renders

all disclosure(s) occurring therein, especially qua immediately subsequent to the departure from the relevant site, of PW-1, and, of PW-3, the

narrations, of, apposite incriminatory ascriptions vis-a-vis the accused being rendered, qua them, by one Anurag, (e) hence beget(s) a conclusion, of,

despite, the aforesaid trite factum remaining not eye witnessed, by PW-1 and PW-3, yet ascription by Anurag, of apposite guilt vis-a-vis the

appellant/accused herein, hence acquiring a profound aura of credibility.

10.Aggravated momentum, to the aforesaid inference, is lent by knife, Ex.P-3 being efficaciously proven to be recovered, in the legally ordained

manner, pointedly, under memo borne in Ex.PW5/C, preceding whereto, a disclosure statement, of the accused/appellant herein, borne in Ex.PW5/A,

was recorded, by the Investigating Officer concerned. The effect of an efficacious recovery of knife Ex.P-3, being, hence made by the Investigating

Officer, is of it comprising a valuable, besides the strongest piece of incriminatory evidence, against, the accused/appellant herein, also, efficacious

recovery of knife, Ex.P-3, under memos Ex.PW5/A and Ex.PW5/C also effaces, the effect, if any, of the aforesaid witnesses, being previously, not

known, to the accused.

11.Be that as it may, the identification in Court of accused Mahavir Singh by PW-3, even without prior10 thereto, no valid test identification parade

hence being conducted by the Investigating Officer concerned, also assumes probative tenacity, given it being testified, by PW-2, of accused Mahavir

being previously known to him, (i) whereupon, he stood empowered to identify him in Court, (ii) and also hence there being no peremptory obligation

cast upon the Investigation Officer to hold a valid test identification parade. (iii) More so, when the aforesaid testification, of, PW-2 vis-a-vis the

accused being previously known to him, remained unshattered, of its efficacy.

12.For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court 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 trial Court does not suffer from any gross

perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

13.Consequently, the instant appeal is dismissed and the judgment of conviction is affirmed and maintained. However, keeping in view the facts and

circumstances of the case and fact that the accused/convict/appellant is of a young age and is also a first offender, hence, the sentence imposed upon

the accused/appellant by the learned trial Court is modified, and, the convict/accused/appellant is sentenced to undergo rigorous imprisonment for three

years, for his committing an offence punishable under Section 307 of the IPC, and, he shall pay a fine of Rs.25,000/- and in default of payment of fine

amount, he shall further undergo simple imprisonment for one year. A sum of Rs.25,000/-, as compensation, if recovered as fine imposed on the

convict be paid to the injured Anurag. The period already undergone by the accused/convict/appellant herein either in police or in judicial custody is

ordered to be set off, from, the sentences awarded against him. Since, the accused/appellant is already in jail, hence, a fresh jail warrant carrying

modification therein, in the aforesaid manner, vis-a-vis the sentence imposed upon the accused/convict/appellant herein be hence issued. Records be

sent back forthwith. All pending applications also stand disposed of.