State of H.P vs Dhani Ram & another

Sureshwar Thakur, J.

1.The instant appeal stands directed by the State of Himachal Pradesh against the judgment rendered on 22.7.2008 by the learned Judicial Magistrate

1st Class, Court No. III, Hamirpur, H.P., in Police Challan No. 22-I-2004, RBT 82-II-2004, whereby, he acquitted, the accused for theirs allegedly

committing offences punishable under Sections 341, 325, 323 and 504, IPC read with Section 34 of the IPC.

2.The facts relevant to decide the instant case are that on 5.6.2003, when S.I. Des Raj was on routine patrol at Bhota Chowk then complainant Meera

Devi got her statement recorded with him. It was revealed by the complainant that on the same day at about 7.00 p.m., she was working with her

sisters Sunita Devi and Maya Devi in the fields. Dhani Ram and his wife Parveena Kumari came to her and started abusing her. They started saying

that they would not allow them to pass through the path which has been going through their land. Dhani Ram as also Parveena Kumari gave beatings

to her along with her two sisters with 'dandas' and stones. It was also revealed by the complainant that one of her teeth has been broken and that she

wants to get medical examination done. On the basis of this statement, an FIR was recorded in the police station concerned. Thereafter, the police

completed all the codel formalities.

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

Procedure was prepared, and, filed before the learned trial Court.

4.The accused stood charged by the learned trial Court for theirs committing offences punishable under Sections 341, 325 and 323 IPC read with

Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 9 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, and, tendered in evidence Ext. D-1 and Ex. D-7.

5.On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondents herein.

6.The State of H.P., stands aggrieved, by the judgment of acquittal recorded in favour of the accused/respondents, by the learned trial Court. The

learned Addl. Advocate General for the State, has concertedly, and, vigorously contended qua the findings of acquittal 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 acquittal warranting reversal by this Court in the exercise, of its appellate jurisdiction,

and, theirs standing replaced by findings of conviction.

7.On the other hand, the learned counsel appearing for the accused/respondents herein, has, with considerable force and vigour, contended qua the

findings of acquittal 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.Initially upon Police Challan No.22-I-2004, RBT 82-II-2004, the learned trial Court had pronounced an order of conviction upon the accused.

However in an appeal carried therefrom, by the accused/respondents herein, before the learned Sessions Judge, Hamirpur, the latter, on anvil of MLC

Mark-X authored by PW-9, Dr. Chaman Lal, remaining unproved besides unexhibited, especially during the course of the trial,hence, he ordered for

recalling of PW-9, for, his hence proving mark-X. Consequently, also the learned Sessions Judge, Hamirpur on 9.1.2008, ordered for a denovo trial, by

the learned trial Court, from, the stage subsequent, to the re-examination of the aforesaid PW-9, Dr. Chaman Lal. Moreover, the learned Sessions

Judge, Hamirpur, set aside the judgment of conviction, and, sentence pronounced, on 28.8.2006, by the learned trial magistrate, hence, made an order

of remand, upon, the learned trial Court. The learned trial Court, upon, receiving police challan No. 22-I/2004, RBT No.82-II/2004, upon, its remand

vis-a-vis him, rendered finding of acquittal thereon vis-a-vis the accused/appellants herein.

10.The learned Additional Advocate General has contended with vigour, that with the order of remand pronounced upon the learned trial Court, being,

confined only vis-a-vis proof, being adduced qua the authorship of MLC Mark-X, thereupon, in the learned trial Court, rather further proceeding to

record an order of acquittal, after, receiving the apposite police challan, on remand, from the learned Sessions Judge, has hence inaptly effaced all the

effect(s) of proper befitting appraisal, of evidence, as previously done, by the learned trial Court. However, the aforesaid submission made by the

learned Additional Advocate General, is bereft of any tenacity, given the order of remand, made, upon the learned trial Court, by the learned Sessions

Judge, Hamirpur, also carrying a clear mandate qua the conviction, and, sentence recorded, on 28.8.2006, by the learned trial Court, being quashed and

set aside, and, thereupon it was permissible vis-a-vis the trial Court, to reappraise evidence, and, to record a fresh verdict, upon, the apposite police

challan.

11.Uncontrovertedly, in respect of the incident, of 5.6.2003, which occurred at about 7.00 p.m. at place Nahalwin, the accused, had alike, the

complainant(s), hence, instituted an FIR exhibited therein, as Ex.PW1/A. Upon the aforesaid exhibit being put to trial, by the learned Additional chief

Judicial Magistrate, the latter proceeded to record, an order of acquittal, upon the accused therein, who are victims/complainants, in the instant FIR.

The learned Additional Advocate General had made an intimation, to this Court, that, the State has not preferred any appeal, against the order of

acquittal pronounced by the learned Additional Chief Judicial Magistrate, upon, police challan No. 11/I/2004/15-II-2007, challan whereof appertains, to

an incident, alike the one, appertaining to the extant FIR. The effect of the conclusivity(ies) hence enjoyed by the verdict pronounced, by the learned

Addl. C.J.M. in police challan No. 11/I/2004/15-II-2007, especially, when pointedly, and candidly the incident borne therein, directly appertains to an

incident, alike the one carried, in the extant FIR, (a) is, of, obviously its carrying a profound implication, of the incident which is borne in the extant

FIR, not, carrying the entire truth of the incident reported therein, rather, the genesis of the incident, borne, in the extant FIR being a sequel, of,

suggestio falsi and suppresio veri, (b) whereupon, hence, a concomitant conclusion, is drawable of the version testified by the victims/complainants qua

the contents of the extant FIR, especially when no independent witness besides them, stood associated by the Investigating Officer, rather being a

sequel, of, sheer contrivance or an invention, (c) thereupon, any contrived or suppressed version vis-a-vis the genesis of the incident, borne in the

extant FIR, hence cannot be imputed any sanctity.

12.Be that as it may, even if assumingly, dehors the aforesaid inferences drawn by this Court, the evident lack of inter se or intra se contradiction, in

the respective testifications, of, PW-1, PW-4, and, PW-5, does hence constrain this Court, to impute sanctity vis-a-vis their respective testifications.

Nonetheless, with, the complainant PW-1, making a testification of the victims being belaboured with dandas, and, stones, (i) thereupon, for hence the

aforesaid factum, to marshal truth, hence, enjoined the Investigating Officer concerned, to make lawful efficacious recoveries thereof, (ii) whereupon,

alone hence ascription(s) of quilt by PW-5 vis-a-vis the accused, would rather acquire an aura of credibility, (iii) whereas, the investigating officer

concerned, not ensuring any efficacious recoveries, of, either dandas or of stones, though testified by PW-5 to be wielded by the accused, and, with

user whereof they inflicted injuries, upon, the respective persons of the complainant party, (iv) does hence constrain a conclusion of their testification

vis-a-vis the occurrence, rather not carrying any aura of truth. Further sequel thereto, (v) when entwined, with conclusivity hence enjoyed by the

verdict pronounced upon FIR Ex.PW1/A, borne in Police Challan No. 11/I/2004/15-II-2007, (vi) FIR whereof appertains, to an incident alike the one

borne in the extant FIR, and, when thereupon this Court has hence concluded, of the version borne in the extant FIR, being, a sequel of suggestio falsi

and suppresio veri, (vii) thereupon, it is befitting, to conclude of the verdict of acquittal, recorded by the learned trial Court, hence not, warranting any

interference.

13.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 a gross

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

14.Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained.

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