State of H.P. vs Roop Lal and others

Sureshwar Thakur, J.

1.The instant appeal stands directed by the State of H.P., against, the judgment rendered on 13.08.2008, by the learned Sessions Judge, Hamirpur,

H.P. in Criminal Appeal No. 37 of 2007, whereby, he set aside the judgement of conviction, and, sentence 2 recorded, upon, the accused/respondents

herein, by the learned trial Court.

The facts relevant to decide the instant case are that Meena Devi wife of Kamaljeet went to Police Station Bhoranj, and made the statement

Ex.PW1/A under Section 154 Cr.P.C. It was stated by her that her husband and her “jeth†are serving in Indian Army and that she is residing

with her in- laws and sister-in-law (jethani) in village Gagheri, Tappa Bamson, Tehsil and Police Station Bhoranj, District Hamirpur, H.P. On May 12,

2000, she and her mother-in-law Tara Devi went to show grass to their cattle in their cowshed and thereafter, they were removing the stones kept by

accused persons in the courtyard of their cowshed. In the meantime, after finishing the work, when they were returning to house, at about 8.30 p.m.,

Roop Lal accused came on his tempo and stopped it, in front of the shop. His driver and conductor also got down from the tempo along with him. His

wife Sandhya Devi and son Naresh Kumar @ Sanju told him that Meena and her mother-in-law had removed the stones from there. Then Roop Lal

started abusing them filthily. In the meantime, all the accused persons went inside the shop and came out with dandas. She and her mother-in-law,

went to their room, but the accused persons chased them there and gave them beatings. In the meantime, her “jethani†Salochana Devi came and

when she intervened, the accused persons gave beatings to her also. When alarm was raised, Santosh Kumar, Ashwani Kumar, Sanjeev and Raghubir

Singh came to the spot and rescued them. While going away the accused persons threatened to kill them subsequently. Upon this statement, FIR was

registered in the police station concerned and the police completed all the codal formalities.

On conclusion of the investigations, 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.

The accused/respondents herein stood charged by the learned trial Court for theirs committing offences punishable under Sections 147, 452, 323,

325, 504, 506 read with Section 149, IPC. In proof of the prosecution case, the prosecution examined 10 witnesses. On conclusion of recording of the

prosecution evidence, the respective statement(s) of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned

trial Court, wherein, each of the accused claimed innocence and pleaded false implication in the case. They also examined three witnesses in their

defence.

On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/respondents herein, for theirs

committing offences punishable under Sections 147, 452, 323, 325, 504 and 506 IPC read with Section 149 of the IPC. In an appeal preferred

therefrom, by the accused/respondents herein, before, the learned Sessions Judge concerned, the latter reversed the apposite findings of conviction,

and, sentence recorded in the judgment pronounced by the learned trial Court.

The State of H.P. stand aggrieved by the findings recorded by the learned Sessions Judge concerned, in dis-concurrence vis-a-vis the judgment, of

conviction recorded against them by the learned trial Court. The learned Addl. Advocate General appearing for the appellant herein, has concertedly

and vigorously contended qua the findings of acquittal, recorded by the learned Sessions Judge concerned, standing not based on a proper appreciation

by him, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by him, of the material on record. Hence, he contends

qua the findings of acquittal rather warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of

conviction.

On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the

learned Sessions Judge standing based on a mature and balanced appreciation, by him, of the evidence on record, and, theirs not necessitating any

interference, rather theirs meriting vindication.

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.

The relevant occurrence, occurred at the apposite place reflected in the site plan, borne in Ex.PW1/C. The victims/injured Salochana Devi, Meena

Devi and Tara Devi, in their respectively rendered testifications, qua the occurrence reported in FIR embodied in Ex.PW10/A, (i) therein make vivid

consistent therewith echoings, bereft of any inter se or inter se contradictions, vis-a-vis the incriminatory roles of the accused. PW-2 Raghubir Singh,

an independent witness to the occurrence, has, rendered a testification holding absolute tandem with the unblemished testifications, rendered by the

victims aforesaid. Alike PW-2, another independent witness to the occurrence, one Rajesh Kumar (PW-4), has, in his testification, also meted absolute

corroboration vis-a-vis the testification(s), of the victims, and, vis-a-vis the testification of PW-2. In aftermath, given the untainted unblemished

testimonies rendered by the aforesaid prosecution witnesses, hence constrains this Court, to impute credence thereto besides constrains this Court to

prima facie dis-affirm the findings of acquittal recorded by the learned Sessions Judge concerned.

However, the counsel appearing for the respondents/accused has contended with vigour, that the testification, occurring, in the cross- examination

of PW-1, (a) wherein, she makes a disclosure, of, the relevant occurrence taking place inside the cowshed, (b) thereupon, the revelations, borne in the

site plan, embodied in Ex.PW10/C being rendered vulnerable to skepticism, (c) more so, when the Investigating Officer in his testification, occurring in

his cross-examination has made a vivid echoing, of, during the course of his holding investigations, his rather detecting qua the occurrence not taking

place, at the place testified, by the PWs. However, the aforesaid espousal, made before this Court by the learned counsel appearing for the

accused/respondents, for the reasons to be ascribed hereinafter, is extremely fragile besides frail, hence is amenable to be discountenanced. (i) PW-1

in her cross-examination, after bespeaking, of, a verbal wrangle occurring inside the cowshed, thereafter clarifying, of, the alleged belabouring,

occurring, at the first floor of the relevant building, (ii) of the learned defence counsel while holding her to cross-examination, permitting her, to make

an echoing of one Raghubir, making, the initial intercessory arrival at the site of occurrence, and, also permitting her to make an echoing, of, upon

arrival of PW2 Raghuvir Singh, at the site of occurrence, the scuffle yet remaining in progress. The effects thereof, being, (i) the defence acquiescing

of the site of occurrence hence comprising the one reflected in the apposite site plan, (ii) and also acquiescing of the relevant penal scuffle taking

place thereat, besides importantly, also acquiescing, of, the incriminatory involvement therein, of, the accused. The effect, if any, of the Investigating

Officer, in his cross-examination, making an echoing of his, during, the course of holding investigations, rather detecting of the reflections borne in the

site plan being falsified, is ridden of its disabling effect vis-a-vis the prosecution case, (iii) given the learned defence counsel, immediately subsequent

thereto, putting an affirmative suggestion, qua Mark-X, embodied in Ex.PW10/C, being, the relevant site of occurrence, whereto, a compatible

therewith affirmative echoing rather emanating, from, the Investigating Officer concerned. Reiteratedly, hence, the aforesaid affirmative formidable

echoing meted by the Investigating Officer concerned, vis-a-vis a compatible thereto, affirmative suggestion, put qua him by the learned defence

counsel while holding him, to cross-examination, hence enhances an inference, of the defence conceding qua not only the occurrence taking place at

the place denoted, as, Mark-X in Ex.PW10/C, besides also the defence rather acquiescing, of, the incriminatory roles of the accused, in the relevant

assault.

With this Court imputing credibility, to the apposite reflections occurring in the site plan, besides of this Court imputing sanctity to the testifications,

of ocular witnesses to the occurrence, though hence does constrain findings, of, the charge against the accused being prima facie proven, (i) yet it is

also to be marshalled, from, the medical evidence, whether it holds bespeaking, in consonance with the testifications rendered, by the ocular witnesses

to the occurrence. PW-6, Dr. Lalit Kalia, examined the victims, namely, Salochana, Meena Devi, and, Tara Devi and qua them issued apposite MLCs,

respectively borne in Ex.PW6/A, Ex.PW6/B, and, in Ex.PW6/C. The aforesaid apposite MLCs were proven by him, during the course of his testifying

in Court. With PW-6 proving the respectively drawn MLCs by him, vis-a-vis the victims, and, his also during the course of his examination-in-chief,

making, a candid echoing qua the injuries borne therein, being causable by user, of, dandas, Ex.P-1 to P-3, dandas whereof stood shown to him in

Court, also, hence galvanizing an inference of the medical evidence rather meteing corroboration vis-a-vis the testification(s) of ocular witnesses, to

the occurrence.

Be that as it may, during the course of the relevant assault, glass bangles of the victims were broken, besides bulbs were also broken. The broken

glass bangles, besides broken glasses of bulbs, were, taken into possession, through, memo Ex.PW2/A. Witnesses thereto are PW-2 Raghubir Singh,

and, PW-4 Rajesh Kumar. Both of whom, during the course of their respective testifications, admitted, the occurrence of their respective signatures

thereon besides also admitted qua the apposite recoveries, as reflected therein, being effectuated, in their presence. The learned defence counsel,

while holding both PW-2 and PW-5, to cross-examination, has omitted to put apposite suggestions to each, carrying therein, echoings qua preparation

of Ex.PW2/A being fictitious or the items reflected therein to be recovered thereunder, being a sequel of sheer contrivance, and, stratagem deployed

by the Investigating Officer. Omission(s), of the learned defence counsel, while holding PW-2 and PW-5, to cross-examination, to hence put the

aforesaid apposite suggestion(s) to them, for hence belying the efficacy of preparation of Ex.PW2/A, rather constrains an aplomb conclusion, of the

aforesaid memo, being, evidently proven to be efficaciously drawn, and, hence also it being a clinching pointer, towards, the incriminatory rules of the

accused, besides it meteing unflinching corroboration vis-a-vis the testification of ocular witnesses.

The recovery of dandas Ex.P-1 to P-3, was effectuated under memo Ex.PW2/A, by the Investigating Officer, from, the site of occurrence.

Consequently, the recovery of Ex.P1 to P-3, was not made or effectuated within the domain of Section 27, of the Indian Evidence Act nor obviously

the Investigating Officer concerned either recorded the apposite disclosure statements of the accused, nor in pursuance thereto, he effectuated

recoveries thereof. However, want of adherence by the Investigating Officer vis-a-vis the mandate of Section 27 of the Indian Evidence Act, would

yet not erode, the efficacy of the recitals borne in Ex.PW2/A, whereunder danda(s) were recovered. The reason for forming the aforesaid conclusion

emanates from (a) the witnesses thereto PW-2 and PW-5, proving, the recitals borne in Ex.PW2/A, and, both, during the course of their respective

cross-examinations, by the learned defence counsel, being not put any apposite suggestion(s), of occurrence or collection of the dandas, at/from, the

site of occurrence, being an invention or contrivance deployed by the Investigating Officer or there existence thereat, being, a sequel of a clever

mechanism deployed by the Investigating Officer, (b) significantly, arising from his colluding, with the complainant/victims, (c) whereas, meteing of the

aforesaid suggestion to the aforesaid witnesses, was imperative, for nailing a conclusion, qua, for evident want of adherence by the Investigating

Officer concerned vis-a-vis the mandate of Section 27 of the Indian Evidence Act, thereupon, the collections by him of dandas, from, the site of

occurrence, hence not constituting evidence of any probative vigour, for, hence connecting the apposite collection of dandas, imperatively, with their

user by the accused. Reiteratedly, hence for want of apt meteings vis-a-vis them, the aforesaid suggestions, does dispel, any rearings, of, any

adversarial inference(s) vis-a-vis the efficacy, of their recoveries arising from non meteing, of, compliance vis-a-vis the mandate, of Section 27 of the

Indian Evidence Act, (d) rather their collection, from, the site of occurrence, by the Investigating Officer, in respect whereof he drew memo

Ex.PW2/A, (e) memo whereof stands efficaciously proven also hence enjoys apt probative vigour, (f) besides hence the existence of dandas, at, the

site of occurrence neither being an invention nor a contrivance deployed by the Investigating Officer concerned, (g) rather the prosecution proving, of,

dandas being hence used by the accused in the relevant assault, more so, when for reasons aforestated, the defence acquiesces, to the relevant

occurrence taking place at Mark-X, as, denoted in the site plan, borne in Ex.PW10/C.

The learned Sessions Judge concerned, had misread the significance, and, import of the relevant evidence, rather had dwelt upon the occurrence,

of compromise(s) inter se the accused, and, the complainant, compromise(s) whereof are borne in Ex.DW4/A and in Ex.DW4/B, besides he on anvil

of PW-1, making a disclosure in her cross-examination, that, staking of stones, rather occurring on the land belonging to accused Roop Lal, hence, has

drawn the conclusion, of the accused, in exercise of their right to private defence, of, property, theirs using reasonable force, to thwart the aggression

mounted, by the complainant. However, the aforesaid pointed focus cast upon the aforesaid evidence, is beyond the apposite espousal(s), of the

defence. Consequently, any inference drawn upon the aforesaid evidence, was, neither permissible nor hence can come to be countenanced by this

Court.

For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge concerned, has not, appraised the entire

evidence on record in a wholesome and harmonious manner, apart therefrom the analysis of the material on record, by the learned Sessions Judge

concerned, suffers from a gross perversity or absurdity of mis-appreciation, and, non appreciation of germane evidence on record.

Consequently, the instant appeal is allowed. In sequel, the judgment rendered by the learned Sessions Judge, Hamirpur, in Criminal Appeal No. 37

of 2007, on 13.8.2008 is set aside, whereas, the judgment rendered by the learned Additional Chief Judicial Magistrate, Hamirpur, in Police Challan

No.59-I-2000/72-II-2007 is affirmed and maintained. All pending applications also stand disposed of. The learned trial Court is directed to forthwith

execute the sentence imposed upon the accused/respondents herein. Records be sent back forthwith.