IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

.

Cr. Appeal No. 470 of 2007 Decided on : 18.3.2017 .P

State of Himachal Pradesh …..A H ppellant. Versus

Ranjeet Singh & Others. o f …..Respondents. Coram The Hon'ble Mr. Justice Sureshwar Thak r ur, t Judge. Whether approved for reportin u g? 1 Yes. For the Appellant: o Mr. R.S Thakur, Additional Advocate General. For the Respond en C ts: Mr. N.K Thakur, Sr. Advocate with Mr. Divay Raj Thakur, Advocate for respondents No.

1 to 3 and 5.

_____ g _____h_____________________________________________ i

Sureshwar Thakur, Judge (oral) H

The instant appeal stands directed against the impugned judgment of 31.5.2007 rendered by the learned Judicial Magistrate, 1 st Class, Jogindernagar, District Mandi, H.P., in police challan No. 2- II/2004, whereby the learned trial Court acquitted the respondents (for

short "accused") for the offences charged.

1 Whether reporters of the local papers may be allowed to see the judgment?

1

2. Brief facts of the case are that on dated 24.2.2003 at about .

11.00 P.M. complainant Shri Ravinder Singh was going to drop P his driver at place Chapru of Tehsil Jogindernagar. Driver Rabel . Singh and Ram Dhan were also sitting in this car No.HP- f 29-072 H 2. When the car reached near Magru Nalla, driver Rabel Sin o gh said that since it was

pitch dark, he could not undertake the jou rney on foot to his house. Owing to this reason , Rabel Singh chang t ed his mind and advised that all of them to return back. W u hile th r ey were returning, a tractor was found stationed in the m o iddle of the road in such a manner so as to cause obstruction to the vehicular traffic. The complainant got down from the car and re C quested all of the persons who were standing near

the tractor h to give him the way, but accused Ramesh and Rakesh who

we i re g holding Khukris started assaulting him with Khukris. The H complainant received injuries in the assault aforesaid. The remaining accused were also armed with sticks and they also assaulted the complainant by stick blows. Accused persons, thereafter snatched the key of the complainant's car. Driver Rabel Singh and Ram Dhan cried

for help and the accused persons fled away. The complainant

approached Police Station during the night and reported the matter at

about 1.30 A.M. upon which formal FIR against the accused persons

2

came to be lodged. After completing all codal formalities and on .

conclusion of the investigation into the offence, allegedly commi P tted by the accused challan was prepared and filed in the Court. .

3. The accused stood charged by the learne H d trial Court for theirs committing offences punishable under Sec f tio ns 148, 341, 323, 324 readwith Section 149 of Indian Penal Co de o , to which they pleaded not guilty and claimed trial. t

4. In order to prove its r case, the prosecution examined 6 witnesses. On closure of o pros u ecution evidence, the statements of the accused under Sec C tion 313 of the Code of Criminal Procedure were recorded in wh ich they pleaded innocence besides claimed false implication h . However, they did not choose to lead any evidence in

defen g ce.

H^5. i On an appraisal of evidence on record, the learned trial Court returned findings of acquittal qua the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal

recorded by the learned trial Court standing not based on a proper

appreciation of evidence on record, rather, theirs standing sequelled

by gross mis-appreciation of material on record. Hence, he contends

3

qua the findings of acquittal warranted reversal by this Court in the .

exercise of its appellate jurisdiction and theirs standing repla . ced P by findings of conviction.

7. The learned Sr. counsel appe f arin g H for the respondents/accused has with considerable fo o rce and vigor contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appre t ciation of evidence on record and theirs not necessitating u inte r ference, rather theirs meriting vindication.

8. This Cour C t with o the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence o h n record.

9. i g In sequel to victim/complainant Ravinder Pal standing H assaulted by co accused Ramesh Chand and Rakesh Chand, by both respectively purportedly wielding "Khukhris" also by co-accused Ranjit Singh by the latter purportedly wielding "sticks", he sustained injuries on his person, injuries whereof stand reflected in Ex.PW5/A.

10. With PW-5 Dr. Susheel Chander in his testification occurring in his examination-in-chief deposing qua the injuries noticed by him to be occurring on the person of the victim, injuries whereof stand

4

embodied in Ex.PW5/A, being causable thereon by user of Khukhri .

(Ex.P-1) which stood shown to him in Court besides with P the purported ocular witnesses to the occurrence PW-1 (Ravinde . r) and PW-2 (Ram Dhan) also deposing with utmost f int ra H se harmony therewith, constrains the learned Additiona o l Advocate General to espouse qua the learned trial Court wh ile returning findings of acquittal qua the accused, its going t astray from the evident fact marked by the aforesaid evidence on r record.

11. The genesis of th o e pro u secution case embodied in the FIR held in Ex.PW6/B stood C enjoined to be lent succor by convincing evidence, bereft of any dis crepancies improvements besides embellishments vis- à-vis the v h ersion(s) held in Ex. PW-6/B, making upsurgings in the

tes i tim g onies of the ocular witnesses thereto comprised in theirs with H intra-se harmony testifying not only with respect to the wielding of "Khukhris" respectively by co-accused Ramesh and by Rakesh but also qua the factum pronounced in the FIR aforesaid qua other co- accused standing armed with "sticks". In case the version embodied

qua the occurrence in the apposite FIR qua accused Ramesh and

Rakesh each respectively wielding "Khukhri" with user whereof they

inflicted injuries on the person of the victim, remain untestified by the

5

purported ocular witnesses to the occurrence also if the ocular .

witnesses to the occurrence do not with utmost intra se harm P ony depose qua other co-accused delivering blows on the person of . victim with user of "Sticks", thereupon the veracity of the ve H rsion qua the occurrence encapsulated in the FIR would stan o d ren f der ed enfeebled.

12. On traversing through the dep osition of Ram Dhan, a purported ocular witness to the occurren t ce, it stands unveiled qua his deposing qua co-accused Ram u esh r and Rakesh inflicting blows of "Khukhri" upon the pers o on of the complainant whereupon he succors the version qua the aforesaid factum pronounced in the FIR yet when in the later par t o C f his examination-in-chief he was shown Ex.P-1

recovered h under memo Ex.PW1/A whereat though he identified it to

be i sa g me which stood used by the accused aforesaid for inflicting H injuries on the person of the victim nonetheless thereat both the learned Public Prosecutor also this witness maintained reticence qua user thereof by either accused Ramesh or by accused Rakesh. Also both the learned APP concerned and this witness maintained reticence

nor obviously made any narration in consonance with the recitals

recorded in the FIR qua both accused Ramesh and Rakesh wielding

"Khukhris", non-emanation whereof from PW Ram Dhan renders it

6

befitting to conclude qua the deposition of PW-2 Ram Dhan, a .

purported ocular witness to the occurrence wandering astray bes P ides not pin pointedly as disclosed in the apposite FIR, making unv . eilings qua both accused Ramesh and Rakesh wielding "Khuk H hris" also his hence not corroborating the factum held in the app f osi te FIR qua both aforesaid accused at the relevant time of occur o rence theirs respectively wielding "Khukhris" whereupon the fa t ctu m aforesaid enunciated in the FIR looses its tenacity wher u eupon r the prosecution case staggers. 13. Also, PW-3 (Rab o el Singh), the other purported eye witness to the occurrence in d C eparture to the factum pronounced in the FIR qua each accused Ra mesh and Rakesh wielding "Khukhri" at the site of the occurrence h , discloses in his testification only qua Ramesh wielding

"K i hu g kri" with user whereof he inflicted injuries on the person of the H complainant. Also he deposes qua other accused by user of "sticks" hence inflicting injuries on the person of the complainant. The deposition of PW-3 Rabel Singh contradicts the version recorded by PW-2 Ram Dhan with respect to :-

(a) user by both co-accused Ramesh and Rakesh of

"Khukhri";

7

(b) also with respect to the ascription by PW-3 of an .

inculpatory role qua other co-accused comprised in th P eirs delivering injuries on the person of the complainan . t with user thereon of "Sticks", factum whereof r f em ain H s un-testified by PW-2.

14. The aforesaid contradictions inter -se o the testifications of PW-2 and PW-3 both purported eye r w t itnesses to the occurrence, contradictions whereof arise from theirs not hence deposing in conformity with the crucial fac u tum embodied in the apposite FIR qua

user of weapon of o C ffence o respectively by the accused also theirs hence deposing with an inherent intra-se contradiction qua the user of weapon(s) h of offence respectively by co-accused Ramesh and Rakesh,

giv i es g impetus to an inference qua their testimonies not holding any H creditworthiness, for thereupon this Court holding with aplomb qua the entire genesis of the prosecution version embodied in the apposite FIR standing clinchingly proven.

15. Moreover, the Investigating Officer concerned stood enjoined with a dire legal necessity, to prior to effectuate recovery of weapon of offence, his during the course of holding the accused to custodial interrogation, his recording the disclosure statement of the accused,

8

holding unfoldments therein qua the place of its concealment or .

hiding by him, necessity whereof stands cornered within the dom P ain of Section 27 of the Indian Evidence Act, 1872, provisions w . hereof stand extracted hereinafter also therein it stands prop H ounded qua thereupon an admissible besides a relevan o t cus f tod ial confessional

statement of accused assuredly making its emergence, in sequel whereto, the subsequent recovery of t t he weapon of offence, at the instance of the accused wou u ld h r old immense evidentiary clout, contrarily when without o preceding thereto, the apposite statutorily warranted custodia C l confessional disclosure statement of the accused remained unreco rded, thereupon any bald recovery of any weapon of offence by h the investigating Officer at the instance of the accused

wo i ul g d be hence wholly naked nor would it be construable to be an H admissible besides a relevant piece of incriminatory evidence vis-à-vis the accused, significantly when the mandate of law warrants effectuation of the relevant recovery at the instance of the accused not under an apposite recovery memo rather warrants recording prior

thereto an admissible custodial disclosure statement of the accused. In

other words, the recording of a disclosure statement of the accused by

the Investigating officer prior to his effectuating any recovery at the

9

instance of the accused, is preemptory, its embodying the custodial .

confessional statement of the accused, omission to record whe P reof renders inconsequential besides inadmissible any recovery u . nder a naked bald recovery memo. H

"27. How much of information r f ece ived from accused may be proved- provided that when any fact is deposed to as discovered in conse quoence of information received from a person accuse t d of any offence, in the custody of a police off u icer, s r o much of such information, whether it amo o unts to a confession or not, as relates distinctly to the fact thereby discovered, may be proven."

C16. H h ereat, tritely with the Investigating Officer concerned prior to i his g effectuating recovery of weapon of offence not recording an apt custodial admissible disclosure statement of the accused renders the

H indispensable canon held within the domain of Section 27 of the Indian Evidence Act qua the accused prior to his facilitating, the Investigating Officer to effectuate recovery of the purported weapon of offence, his making an admissible relevant custodial confessional

statement, remains wholly un-satiated hence rendering recovery, if

any, at the instance of the accused, of the purported weapon of offence

10

to hold no probative vigor nor also it can be concluded qua the .

prosecution thereupon proving qua "Khukhri" with purported P user whereof injuries stood sustained by the victim standing H used t . hereon by the accused.

17. A wholesome analysis of evidence o on re f cor d portrays qua

the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and ab r sur t dit y nor it can be said qua the learned trial Court in recording u findings of acquittal hence committing any legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or o its omitting to appreciate relevant and

admissible evide nc C e. In aftermath this Court does not deem it fit and

appropriat h e qua the findings of acquittal recorded by the learned trial

Co i ur g t meriting any interference. H 18. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.

18^thMarch, 2017 (Sureshwar Thakur)

(priti/ks) Judge

11