State of H.P. vs Vijay Kumar

Sureshwar Thakur, J.

1.The learned trial Court, convicted, the accused, in respect of charge, embodying therewithin, offences constituted under Section 225-A read with

Section 34, IPC. Being aggrieved therefrom, the accused, hence, preferred an appeal before the learned Additional Sessions Judge, Fast Track Court,

Kullu, whereby, the latter Court reversed the findings, of conviction, and, consequent sentences imposed, upon, the accused. Being aggrieved

therefrom, the State of H.P., has hence instituted the instant appeal, before, this Court.

The facts relevant to decide the instant case are that an FIR was got registered by the accused on 28. 7.2001 sating that he and his co-accused

Sohan Lal had brought prisoner Ibrahim Micha, who was accused of the commission of offence punishable under Section 20 of NDPS Act, to the

Court of learned District & Sessions Judge on 27.7.2001. The came to Kullu in a bus and when the bus reached at Dhalpur Chowk at about 7.45 p.m.,

prisoner Ibrahim Micha ran away taking advantage of crowd at Dhalpur Chowk. He left his bag at the spot. Both the accused-police officials followed

him shouting that Ibrahim Micha was running and he should be caught, but he could not be caught due to heavy rush. Efforts were made to find said

Ibrahim Micha, but he could not be traced. The accused had taken sufficient precautions to retain Ibrahim Micha in their custody, but he ran away

taking the advantage of heavy rush. The FIR Ex.PW8/A was recorded under Section 224 of the IPC against said Ibrahim Micha. The investigations

were conducted by H.C. Lal Singh, who visited the spot and prepared site plan Ex.PW11/a. During the investigation, it was found that accused Vijay

Kumar and Sohan Lal had taken the said Ibrahim Micha to htoel Shobhla. The dinner was taken by them at the said hotel. The payment was made by

said Ibrahim Micha. Statements of Harbans Singh, Piare Ram and ASI Sant Ram were recorded, who disclosed that no person had absconded from

the police custody on 27.7.2001 at about 7.45 p.m. Hence, it was concluded that accused had assisted the said Ibrahim Micha in escaping from

custody.

On conclusion of investigation(s), 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 stood charged by the learned trial Court, for, theirs committing offences, punishable under Sections 225A read with Section 34 of the

IPC. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of recording, of, 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.

On an appraisal, of, evidence on record, the learned trial Court, returned findings of conviction upon the accused, for theirs hence committing, the

aforesaid offences. However, in an appeal carried therefrom, by, the aggrieved accused before the learned Additional Sessions Judge concerned, the

latter rather reversed the findings of conviction, and, imposition, of, consequent sentences, upon them.

The State of H.P./appellant herein, stands aggrieved, by the findings of acquittal recorded, by the learned Additional Sessions Judge concerned. The

learned Additional Advocate General appearing for the State, has concertedly and vigorously contended, qua the findings of acquittal recorded by the

learned Additional 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 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 conviction

recorded by the learned trial Court, rather 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.

PW-4 Rishi Pal, is, the prime prosecution witness. He, at the relevant time, was, serving as waiter at Shobhla hotel, wherefrom, one Ibrahim Micha,

who thereat, was, in the custody of the accused, for hence his being produced before the learned trial Court concerned, hence fled, and, his fleeing

from the custody of the accused, is, alleged to arise, from, a penally inculplable negligence, of, the accused. Even though, in his testification, embodied,

in his examination-in-chief, he has reneged, from, his previous statement recorded in writing, and, hence upon the apposite permission being sought,

and, standing granted by the learned trial Court, he, was subjected, to, an ordeal of an exacting cross-examination by the learned APP concerned. In

the opening lines of his cross-examination, there, is, a clear, and, candid purveying, of, an affirmative suggestion vis-a-vis him,

(i) of police personnel arriving, at the hotel, on, 27.7.2001, and, also there, is, purveying vis-a-vis him, a suggestion of the police personnel, being

accompanied, by 2-3 foreign nationals. Furthermore, also an affirmative suggestion, stood, meted to him, of, his tendering a bill comprised in

Ex.PW4/A, all whereof, affirmative suggestion put to him, sequelled, emanations, of, affirmative responses thereto, from him,

(ii) wherefrom, this Court, is, enabled, to erect, an inference, of, PW-4 acquiescing to police personnel hence visiting Shobhla hotel, on 27.7.2001, and,

theirs, thereat, being accompanied by foreign nationals. The aforesaid inference erected, upon, affirmative suggestions aforesaid meted, by the learned

APP concerned, while holding PW-4, to cross-examination, whereto apposite affirmative echoings rather emanated, from PW-4, though, prima facie

appears, to, suffer erosion, from, an echoing, made by PW-4, during, the ordeal of his being subjected to cross-examination, by the learned defence

counsel,

(iii) wherein, upon, an affirmative suggestion being put to him qua the accused being, not, the police personnel, who, visited Shobhla hotel, on the

relevant date, rather an apposite affirmative response hence emanated, from PW-4,

(iv) conspicuously, despite, his in the opening part of his cross-examination, whereat, he rather meted an affirmative response, vis-a-vis an affirmative

suggestion, of, police personnel, visiting the apt hotel, at the relevant time, along with 2-3 foreign nationals,

(v) whereas, subsequently, upon his cross-examination, by the learned defence counsel, he thereat acquiesced, to a suggestion put to him, of, police

personnel, who visited the Shobhla hotel, on the relevant day, being not the accused.

(vi) Nonetheless, thereupon, the defence, is, disabled, to, derive any capitalization qua per se thereupon, the identity, of, the accused being not

formidably established, hence, the verdict of acquittal, not, warranting reversal. The reason, for forming the aforesaid conclusion, is , comprised in the

factum, of,

(vii) with the relevant production warrant, borne in Ex.PW6/B, rather making a palpable display, of, the accused being enjoined to hold custody, of

Ibrahim Micha, and, thereafter produce him, before the learned court concerned,

(viii) hence, contrarily facilitating, an inference, of the accused, at the relevant time, rather holding custody of one Abraham Micha.

 (ix) Now in face thereof, and in the light, of PW-4 in his cross-examination, whereto he stood subjected to, by the learned APP concerned, hence

acquiescing, to, a suggestion, of, police personnel, at the relevant time, being accompanied by 2-3 foreign nationals,

 (x) thereupon, unless evidence was adduced qua the police personnel, who visited Shobhla hotel, at the relevant day, whereat, PW-4 served them

snacks etc., and, thereafter tendered bills, comprised in Ex.PW4/A, being not the accused, nor the foreign nationals accompanying them, being not one

Ibrahim Micha and others,

(xi) or unless clear, candid and forthright evidence, stood adduced, comprised in a rukka or a rapat entered with the police station concerned, holding,

territorial jurisdiction, in the vicinity of Shobhla hotel, with a clear display therein, of, police personnel, who, at the relevant time visited Shobhla hotel,

being hence other than the accused,

(xii) thereupon, alone, the relevant apposite production warrants, borne in Ex.PW6/B, would stand falsified, and, also hence all enumerations borne

therein of the accused, holding, the custody of one Ibrahim Micha, would, also concomitantly stand belied. Contrarily, with the aforesaid best

documentary evidence, for belying, the efficacy, of, all the recitals borne in Ex.PW6/B, rather remaining unadduced. In aftermath, it is to be

concluded, of, the accused while holding the custody, of one, Ibrahim Micha, theirs hence visiting Shobhla hotel, and, the mere communication by PW-

4, upon his being subjected, to, cross-examination, by, the learned defence counsel, of, hence his inability to identify the accused or theirs, not, being

the persons, who visited Shobhla hotel, at the relevant day, also cannot subsume the veracity of all the recitals, borne in Ex.PW6/B.

(xiii) Preeminently, when, the apposite falsificatory evidence, may emerge, from, (a) Shobhla hotel, not, falling enroute the Court(s), whereat one

Ibrahim Micha, was to be produced, (b) of the accused taking a route other than the one whereat, the hotel aforesaid, hence fell, (c) given the

aforesaid evidence being grossly amiss, hence all the apposite exculpatory effects, arising, from, aforesaid apt communication(s) made by PW-4, are

thereupon rendered nugatory.

Be that as it may, the further reasons, for fortifying, the aforesaid inference, is, garnered by the factum, of the accused, in their defence, rather

making a propagation, of theirs, in the evening of 27.7.2001, holding a search, for tracing Ibrahim Micha, yet their search proving futile. However, the

aforesaid plea, for, want of cogent evidence, in support thereof being adduced, hence, remained unproved, and, hence is apparently, a speciously

reared espousal. Furthermore, another plea, in, exculpation of their guilt, was, also reared by the accused, plea whereof, is, comprised in the factum,

of, one Ibrahim Micha, after dispensing, with, his bag, and, taking advantage, of, the crowd his fleeing from Dhalpur bus stand. Since, for sustaining the

aforesaid plea, they were enjoined, to, also espouse, and, prove, of, upon, Ibrahim Micha fleeing, from, their custody, theirs raising, a hue and cry, yet,

the aforesaid plea, is, rendered unsustainable, given PW-3, PW-4 and PW-9, all of whom were, on, traffic duty on the relevant day, at Dhalpur

Chowk, rather omitting to make bespeakings, in their respective testimonies, qua on Ibrahim Micha purportedly managing to flee, from, the custody of

the accused, from Dalpur bus stand, any alarm being raised by the accused, for hence their services being elicited, for, nabbing Ibrahim Micha. The

effect, of, the aforesaid infirm exculpatory espousal, is, of hence an inference being garnered of the accused rather acquiescing of one Ibrahim Micha,

fleeing from their custody, and, his fleeing from their custody not occurring, at Dhalpur bus- stand, rather it occurring at Shobhla hotel, dehors, the

purported frail omission(s) of PW-4, to identify the accused to be persons, who, at the relevant time, visited the hotel concerned, whereat, he was

serving, as, a waiter. Even all adversarial effect(s), if any, of lack of identification, by PW-4, of, the accused, vis-a-vis the prosecution case, is

negatived, by the imminent factum, qua despite accused Ibrahim Micha, escaping, from, the custody of the accused, in, the evneing of 27.7.2001, yet,

the apt report in respect thereof, being made by the accused, belatedly on 28.7.2001, with the police station concerned. The delay in lodging, of, the apt

report vis-a-vis the fleeing from their custody, of, one Ibrahim Micha, is, inconsistent with their exculpatory espousal, and, also with their innocence,

rather is highlightive, of a, conduct hence carrying a proven grave inculpable negligence(s) or omission(s), to, perform their duties.

In aftermath, the reasons, assigned, by the learned Additional Sessions Judge concerned, that mere failure of the prosecution, to prove, of the

accused alongwith, one Ibrahim taking meals, at Hotel Shobhla, hence, per se negativing the charge, is, for the reasons aforestated, both shaky besides

infirm. More so, when it is, anvilled, upon a gross misreading, of the entire evidence aforestated.

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 the germane thereto evidence, on record.

Consequently, the instant appeal is allowed and the judgment rendered by the learned Additional Sessions Judge, Fast Track Court, Kullu, in Cr.

Appeal No.28 of 2007 is set aside, whereas, the judgment of conviction and sentence, rendered by the learned Chief Judicial Magistrate, Kullu, H.P. in

Criminal Case No.232-I/2002/68-II/2002 is affirmed and maintained. Consequently, the learned trial Court is directed to forthwith execute the

sentence imposed, upon, the accused. Records be sent back forthwith.