High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 329 of 2008

Reserved on: 12.9.2014

Decided on :24.9.2014

State of Himachal Pradesh …..Appellant.

Versus

Vishal Sephiya & Others …..Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? 1

1

Yes.

For the Appellant: Mr. Ashok Chaudhary, Additional

Advocate General.

For the Respondents: Mr. Rajesh Mandhotra, Advocate, for

respondents No. 1 to 4.

Mr. V.S Rathore, Advocate, for

respondent No.5.

_______________________________________________________

Sureshwar Thakur, Judge

The instant appeal, is, directed by the State, against the

impugned judgment, rendered on 21.1.2008, by the learned Additional

Sessions Judge-II, Kangra at Dharamshala, in, Sessions case No. 3-

D/VII/2005, whereby, the learned trial Court acquitted the

accused/respondents for theirs having committed offence punishable

under Sections 147, 148, 307 IPC read with Section 149 IPC.

1

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

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2. Brief facts of the case, are, that, on 3.7.2003 a

telephonic information with regard to admission of an injured in the

hospital was received from Zonal Hospital, Dharmshala. On receipt

of information, police party headed by SI Gulzari Lal rushed to the

Hospital. Police recorded the statement of Varun Sharma, who was

accompanying the injured, under Section 154 Cr.P.C, as the injured

was not capable to make a statement. It has been deposed by

Varun Sharma in his statement that he was studying in BSC final

year in Government College, Dharamshala and when he had gone to

the college along with Anil Sharma, then near the office of

Principal, Manoj Sharma and Sudhir Sharma met them and there

were 6-7 boys of the college, who were standing at some distance

and out of those boys one boy had come and asked Manoj Sharma

that he was called by other boys and thereafter that boy started

dragging Manoj Sharma and the remaining boys encircled him and

started giving beatings to Manoj Sharma. One of those boys had

stabbed Manoj Sharma in his stomach with knife, in sequel thereto

Manoj Sharma sustained injuries over his arm and throat.

Thereafter all those boys had run away along with knife. It has

further been mentioned by Varun Sharma that he did not know the

names of the boys but he along with Sudhir Sharma can identify

those boys. He further disclosed in his statement that the boy who

stabbed Manoj Sharma had also threatened him. His statement

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was sent to the Police station for registration of FIR. During the

course of investigation, the police had prepared the spot map and

recovered knife at the instance of accused Kuldip Singh. The knife

was taken into possession. The injured was got medically

examined. As per the medical opinion, the injuries sustained by the

injured were dangerous to life to be caused with sharp edged

weapon.

3. On conclusion of the investigation, into the offence,

allegedly committed by the accused, final report under Section 173

of the Code of Criminal Procedure was prepared and filed in the

Court.

4. The accused were charged, for, theirs having committed

offence punishable under Sections 147, 148, 307 IPC read with Section

149 IPC, by the learned trial Court, to, which they pleaded not guilty

and claimed trial.

5. In order to prove its case, the prosecution examined 10

witnesses. On closure of prosecution evidence, the statements of

accused, under Section 313 of the Code of Criminal Procedure, were

recorded, in, which they pleaded innocence and claimed false

implication. They chose to lead evidence in defence, but lateron no

defence evidence has been adduced.

6. On appraisal of the evidence on record, the learned trial

Court, returned findings of acquittal in favour of the accused.

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7. The State of H.P., is, aggrieved by the judgment of

acquittal, recorded by the learned trial Court, in, favour of the

accused/respondents. The Learned Additional Advocate General has

concertedly, and, vigorously contended, that, the findings of acquittal,

recorded by the learned trial Court, are, not based on a proper

appreciation of evidence on record, rather, they are sequelled by gross

mis-appreciation of the material on record. Hence, he contends that the

findings of acquittal, be, reversed by this Court, in, exercise of its

appellate jurisdiction, and, be replaced by findings of conviction, and,

concomitantly an appropriate sentence, be also imposed upon the

accused/respondents.

8. On the other hand, the learned defence counsel, has, with

considerable force and vigour, contended that the findings of acquittal,

recorded by the Court below, are, based on a mature and balanced

appreciation of evidence on record, and, do not necessitate interference,

rather merit vindication.

9. 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.

10. The first witness, who stepped into the witness box, in,

proof of the prosecution case, is, PW-1, Dr. Neelam Mehta. Injured has

been deposed to have examined by this witness. On examination, she

found following injuries on the person of the complainant/injured:-

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1. Wound one in number incised with sharp cut

margins size 3 cm X 3 cm just below the right rib

cage on abdomen part. Fresh bleeding from the

wound was present .

2. Incised wound on left forearm on dorsal side size

about 10 cm x 10 cm.

MLC comprised in Ex. PW-1/A has been deposed to have issued by her.

In her opinion, the injury is dangerous to life and can be caused with

knife Ex. P-1.

11. PW-2 Dr. A.K Kaundal deposes that on 8.7.2003, police

has moved an application seeking his opinion about the capability of

making the statement by the injured as well as the nature of the injures.

He further deposes that in his opinion comprised in Ex. PW-2/B, the

injured was fit to give statement and the injuries sustained to him with

knife was life threatening. He further deposes that on an application

comprised in Ex. PW-2/C, the case summary of the injured was sought,

and, the case summary comprised Ex.PW-2/D has been deposed to be

issued by him which is under his hand and bears his signatures.

12. PW-3 Inspector Balbir Singh deposes that after completion

of the investigation, he prepared the final report.

13. PW-4 Manoj Kumar, complainant/injured deposes that on

3.7.2003 he had gone to find out his result of B.Com Ist year

examination. He deposes that at about 1.30 /2.00 p.m., while he was

standing outside the office of the college, his class mates met him. He

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continues to depose that he was accompanied by his cousin Sudhir and

were discussing about the result. He further deposes that in the

meantime one boy came to him and asked him to accompany him as

some other boys standing at a distance of 10/15 meters were calling him.

He deposes that he thought that those boys might to know him and as

such he accompanied that boy to that place where boys were standing.

He continues to depose that they started making inquiry about his name

and his parentage and further started asking irrelevant questions, which

led him to ask them about the cause of such inquiry, to which those boys

disclosed to him that there were taking his ragging. He further deposes

that he disclosed to them that he is an old student and did not recognize

them, thereafter all those boys started belaboring him as initially he was

slapped and thereafter giving beatings with kick and fist blows and

thereafter he was stabbed. He deposes that he was given a stab blow by

the accused, who present in the Court standing on the extreme side.

This witness during recording of his deposition has pointed out toward

the accused, who disclosed his name to be Vishal. He deposes that he

was dragged by the accused, who is present in the Court. He has pointed

out towards Ankush and the remaining accused who are present in the

Court have been deposed by him to have started giving beatings to him

with kick and fist blows, who have also been identified by him in the

Court. He deposes that when he was given stab blow in his stomach, it

started bleeding and his clothes were stained with blood. He was saved

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by Sudhir, Varun and Anil. He continues to depose that he was taken to

the hospital by them in a vehicle. He remained admitted there for 20/25

days and thereafter remained bed rest for number of days. His

statement has been deposed by him to have recorded after 4-5 days, as

he was not in a position to speak. He deposes that the police recovered

the knife from the accused present in the Court and he has identified the

said person to be accused Kuldeep Singh. Knife Ex. P-1 has been

deposed by this witness to have taken into possession vide seizure

memo Ex. PW-4/A, which has been signed by him at encircled portion

‘A’. Knife Ex. P-1 has been deposed by him to be the same which was

taken into possession. During the course of his cross-examination, he

admitted it to be correct that the police visited continuously for next

three days. He further admitted it to be correct that before his surgery as

well as after his surgery the police was seeking the identity of the

assailants. He voluntarily deposes that he was not in a position to

disclose anything because of injuries suffered. He further deposes it to

be correct that he did not know the names of the assailants, yet it is

stated to be incorrect that he did not identify the assailants. He

voluntarily deposes that he knew the assailant by their identification

through their faces. It is correct that no identification parade was

conducted during investigation. He further admitted it to be correct that

the police disclosed the names of the boys who were caught by the

police. He further admitted it to be incorrect that vishal never stabbed

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him and that Ankush never caught him nor Ankush and Vivek gave him

any beatings with kick and fist blows. He further stated it to be

incorrect that the accused have been falsely implicated at the instance of

the police.

14. PW-5 Sudhir Sharma deposes that he had gone to

Dharmshala college with Manoj Kumar. He deposes that he was

working at that time with LIC and had gone to meet Manoj Sharma in

the college, who is son of his maternal uncle. He continues to depose

that when they were standing in front of the office of the principal,

Manoj Sharma one Varun and Anil also came over there and joined

them, while they were discussing about the interview which has been

faced by Manoj Sharma about two days back. He continues to depose

that in the meantime, one boy came over there and called Manoj Sharma

as he was called by some other boys who were standing at a distance.

Ankush has been deposed by this witness to have directed by those boys

that in case he did not come, let him dragged away. He further deposes

that he can identify Ankush, who had come to call Manoj. He further

deposes that on the asking of Manoj Kumar about the cause of taking

away then Ankush gave a kick bow to Manoj and all those boys who

were already standing there and today present in the Court started giving

beatings to Manoj. Initially Manoj was given kick and fist blows and

thereafter one body namely vishal gave him a knife blow and inflicted

injuries over his arm and stomach. Thereafter all the accused persons

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have been deposed to have run away from there. He further deposes

that Manoj was then taken to the hospital. Thereafter police arrived at

the Hospital. On inquiry having been made by the police, this witness

had disclosed the names of the assailants to the police. He further

deposes that he knew all the assailants including the accused present in

the Court. He further deposes that the injured remained admitted in the

hospital for about 15/20 days. On his being cross-examined by the

learned defence counsel he deposes it to be correct that he attended his

office on 3.7.2003. He stated it to be incorrect that he came to know

about the occurrence in the office and he then straight away rushed to

the hospital. He did not disclose the police that he came to know about

the name of the assailants as the assailants were calling each other with

such names. He voluntarily deposes that he straight away disclosed the

name of the assailants to the police as he knew their names as they used

to move around in the town earlier. He did not tell the police the

manner in which he was knowing their names. He cannot say about the

number of students getting education in the college during that period.

It is stated by him to be correct that he cannot say the particulars

including addresses of the boys, who used to move around in the town.

Voluntarily stated that he disclosed to the police that Vishal supehia

gave knife blow to the injured. It is incorrect that neither he was

knowing any assailants including vishal and Ankush nor he was

knowing about their names and particulars. It is stated to be incorrect

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that he was not present on the spot. It is also stated to be incorrect that

accused have been falsely implicated in a false case.

15. PW-6 Varun Sharma deposes that in the month of July,

2003 as he did not remember the exact date, he was coming near the

office of principal at about noon, then he saw that Manoj was encircled

by some boys, who called him, by raising his hands and sought his help.

He continues to depose that when he tried to save him by taking out

from those boys and in that process he was pushed and fell down on the

ground. The witness was declared hostile he has resiled from his

previous statement made under Section 154 Cr.P.C. On being permitted

by the Court, this witness has been cross-examined. On his being cross-

examined by the learned P.P, he stated it to be incorrect that knife Ex. P-

1 was taken into possession at the instance of accused Kuldeep Singh

under memo Ex. PW-4/A. Yet he has admitted his signatures over

encircled portion Ex. PW-6/B over memo Ex. PW-4/A. It is also stated

to be incorrect that he made statement supplementary mark X-1 of the

knife having been produced by accused Kuldeep Singh which has been

taken into possession under memo Ex. PW-4/A. During the course of his

cross-examination, by the learned defence counsel, he deposes that he

had signed over encircled portion Ex. PW-6/A and PW-6/B at the

instance of the police.

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16. PW-7 Ramesh Chand deposes that on receipt of statement

under Section 154 Cr.P.C, FIR Ex. PW-7/A was registered, which bears

his signatures with endorsement Ex. PW-7/B.

17. PW-8 SI Gulzari Lal deposes that on receipt of telephonic

information on 3.7.2003 of injured having been admitted in the hospital,

he alongwith HC Madan Lal and HHC Desh Raj rushed to the hospital.

He deposes that he had moved an application to the incharge of the

Hospital, seeking his opinion whether the injured was capable to give

statement and it was opined by the incharge that injured was incapable

of giving statement. Thereafter on 4/5 July, 2003 again opinion was

sought from the Doctor regarding capability of injured of making

statement and on 8.7.2003 the Doctor opined that the injured was fit to

make statement. He also sought the opinion of the Doctor to the nature

of the injury whether the same were dangerous to life vide application

Ex. PW-2/A. Vide opinion Ex. PW-2/B the injury was opined to be

dangerous to life. Case summary comprised in Ex. PW-2/D of the

injured was also obtained on an application Ex. PW-2/C. He continues

to depose that he recorded the statement of Varun Kumar under Section

154 Cr.P.C comprised in Ex. PW-8/A, as per true version given by

Varun Sharma including portion A to A and B to B. The statement has

been deposed to have signed by Varun Sharma. Thereafter FIR was

registered. He further deposes that he also recorded the supplementary

statement of Varun Sharma. He continues to depose that he prepared

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the spot map comprised in Ex. PW-8/D. He further deposes that he

arrested the accused persons. Ex. P-1 has been deposed by this witness

to have produced by accused Kuleep singh in the presence of Varun and

Manoj, which was taken into possession under memo Ex. PW-4/A after

preparing sketch Ex. PW-8/E. Thereafter he recorded the statements of

the witnesses and on completion of the investigation, final report has

been produced by Inspector Balbir Singh. During the course of his

cross-examination, he admitted it to be correct that Varun Sharma

disclosed in his statement under Section 154 Cr.P.C that he alognwith

Sudhir can recognize the assailants as he did not know their names. It is

stated to be correct that Sudhir Sharma is the first cousin of injured. It is

stated to be correct that Sudhir Sharma was not a college student. It is

correct that Sudhir Sharma was working in LIC for the last 2/3 years at

the time of occurrence. It is stated to be correct that Anil kumar was

also with Manoj Sharma, injured on that date. He further stated it to be

correct that he recorded the statement of PW Anil Sharma on 5.7.2003

under Section 161 Cr.P.C. He further stated it to be incorrect that

statement of PW Sudhir Sharma was not recorded on 3.7.2003. It is also

stated to be incorrect that he has intentionally included Sudhir Sharma

as a witness despite the fact that he was neither present on the spot nor

he was conversant with the facts including conversant with the accused.

It is stated to be correct that during investigation he did not verify

whether these were only the accused as named during investigation and

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there are no other similar people of the same name in the college at the

time of alleged occurrence. It is stated to be incorrect that he did not

conduct the investigation in a fair manner so as to establish the identity

of the assailants. It is stated to be incorrect that knife Ex. P-1 was never

handed over by accused Kuldeep during investigation. It is stated it to

be incorrect that knife Ex. P-1 has been falsely planted against the

accused. It is also stated to be incorrect that since it was a false case

thereby no identification parade was conducted.

18. Accused Vikas has been deposed by PW-4 to have

delivered a stab blow with knife Ex. P-1 in the abdomen of the

aforesaid, which sequelled oozing of blood therefrom and soiling of his

clothes. Accused Ankush has been deposed by PW-4 to have dragged

him and the remaining accused have been deposed to have delivered

kick and fist blows. All the accused with the roles attributed to them by

PW-4 in his deposition have been identified in Court by him. The

testimony of PW-4 stands corroborated by the deposition of PW-5 who

was accompanying PW-4 at the apposite stage. The Learned trial Court

in recording findings of acquittal in favour of the accused had dispelled

the testimony of the aforesaid on the score that the identification of the

accused by the complainant/injured in Court is a frail piece of evidence,

in face of it not having been preceded by a Test Identification Parade,

wherein the complainant/injured had taken to identify the accused, in

quick spontaneity to the occurrence. The said reason as attributed by

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the learned Court below in recording findings of acquittal in favour of

the accused remain un-empowered, in the face of the learned trial Court

having omitted to pay reverence to a judgment rendered in AIR 2004 SC

1253 titled Ashfaq vs. State, the relevant paragraph whereof is extracted

hereinafter, wherein it has been voiced that w here the

complainant/injured had sufficient and adequate opportunity to gather

an enduring impression of the identity of the accused, besides when on

the impression gathered by the complainant/injured of the identity of the

accused, as initially revealed to the Investigating Officer, such

revelation led to the arrest of the accused, the factum that the identity of

the accused has remained un-established in quick spontaneity to the

occurrence by the holding of a Test Identification Parade, would not

render the identification of the accused for the first time in the Court by

the complainant/victim to be a feeble or infirm piece of evidence.

Within the enshrined parameters of the judgment of the Hon’ble Apex

Court the relevant paragraphs of which have been extracted hereinafter,

it is to be determined whether credence ought to be imputed to the

factum of the accused having come to be identified by the

injured/complainant in Court, even when such identification for the first

time in Court by the complainant/injured was un-preceded by a Test

Identification Parade. The existence of the enshrined parameters

contemplated in the aforesaid judgment of the victim/complainant

having had sufficiency or adequacy of opportunity to gather or marshal

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an enduring impression of the identity of the accused is unraveled by the

factum of the accused persons having been evidenced to have remained

face to face with the complainant/victim for a reasonable time,

obviously then it has to be firmly concluded that, there was sufficiency

or adequacy of opportunity for the victim/complainant to gather in his

mind a deeply etched impression, of their key identifiable features

which were recalled by him during the course of his coming to identify

the accused in the Court to be the persons who respectively delivered a

knife blow in his stomach with knife Ex. P-1 and also perpetrated kick

and fist blows besides dragged him. Moreover when the complainant

carrying in his mind the identifiable features of the accused facilitated

the arrest of the accused by the Investigating Officer is a potent

circumstance which falls within the enshrined requirement of the verdict

of Hon’ble the Apex Court, relevant paragraph of which is extracted

hereinafter

“……………………………..The case on hand is akin to

the said case dealt with by learned Judges therein, in

that among the accused one was already known on

account of having white-washed their house, that they

have entered their house and was for quite some time

present there holding them at ransom by directing and

using threat to relieve them of the valuables on which

they could lay their hands and it is too much to claim,

in spite of all these, that the evidence of P.Ws 2,3 and

10 could not be either sufficient to properly identify

the accused or relied upon against the accused in the

absence of proper test identification parade. In this

case, it has also further come on record that one

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whose identity was known was initially traced, that the

said trail led the investigating authorities to the others

and that the complainant was also said to have been

associated even at that stage of investigation to

identify the accused and ensure properly the arrest of

the real accused. Consequently, we see no merit

whatsoever in the grievance made and challenge to

the judgments of the Courts below on this ground.”

( at p.p 1255-1256)

19. Consequently, the factual matrix of the case falling within

the enshrined parameters contemplated in the judgment of Hon’ble

Apex Court for dispensing with the necessity of a Test Identification

Parade and vindicating the factum of identification in the Court of the

accused by the injured/victim constrains this Court to conclude that the

requirement of a Test Identification Parade preceding the identification

of the accused in Court was as such dispensable. Consequently merely

for lack of holding of a Test Identification Parade prior to the

identification of the accused in Court, it was legally unwarranted for the

learned trial Court to record findings of acquittal in favour of the

accused/respondents. Fortification to the aforesaid inference flows from

the lack of enunciation in the testimony of the Investigating Officer

comprised in his cross-examination arising from apposite suggestion

having been put to him or to the injured/complainant by the learned

defence counsel, of the victim/injured never having gathered any

enduring impression of the key characteristics features or the

identifiable traits of the accused, omission of such suggestion to both the

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aforesaid by the learned defence counsel pronounces the factum of,

hence, the defence having acquiesced to the fact of the

injured/complainant having at the time of occurrence gathered an

enduring impression of the key characteristics features and physical

traits of the accused rendering him empowered to effectuate their arrest,

as also to identify them in Court dehors a Test Identification Parade

having preceded it.

20. The occurrence was fortuitous, besides the names of the

accused were not known to the complainant/victim. The recovery of

knife Ex P-1 under memo Ex. PW-4/A at the instance of accused

Kuldeep Singh, has been proved by the deposition of PW-4. Even

though the witness to the recovery PW-6 has turned hostile and has not

deposed qua the factum of recovery of knife Ex.P-1 at the instance of

accused Kuldeep Singh yet when during the course of his cross-

examination by the learned PP his having admitted his signatures on

memo Ex. PW-4/A interdicts him to resile from the contents thereof in

the face of the embargo envisaged under Sections 91 and 92 of Indian

Evidence Act, against his deposing orally at variance to the recorded

recitals of the memo which have been admitted by him to be signatured

by him. In sequel it has to be concluded that with there being a bar

under Sections 91 and 92 of Indian Evidence Act against his deposing at

variance to the apposite recorded recitals of the memo admitted to be

signatured by him, his oral testimony in detraction/digression to the

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recorded recitals, is not acceptable evidence. Obviously then as a

natural corollary his having turned hostile so as to render inefficacious

the factum of recovery of knife Ex.P-1 at the instance of accused

Kuldeep is un-worthwhile. Rather it has to be concluded that with his

having admitted his signatures on Ex. PW-9/A, its contents stand

proved. With the formation of aforesaid inference it has to be

concluded that the recovery of Ex. P-1 at the instance of accused

Kuldeep under memo Ex. PW-4/A, is, an efficacious and reliable piece

of evidence so as to connect the accused in the commission of offence

for which they came to be charged and tried by the Court. In aftermath

the factum of recovery of weapon of offence corroborates the factum of

victim having identified the accused in the Court.

21. PW-1 in his examination-in-chief proved Ex. PW-1/A. He

has also proved the fact of injury No. 1 being dangerous to life, besides

he deposed that the injures as noticed by him in Ex. PW-1/A can be

caused with knife Ex. P-1. His testimony stands corroborated by PW-2,

obviously then it stands formidably established by the prosecution that

the injuries sustained by the victim/complainant were dangerous to life,

Consequently, the offence under Section 307 IPC stood convincingly

established against the accused. Even though the act of stabbing of the

complainant/injured PW-4 is attributable to accused Vikas, nonetheless

in the face of others, too, having joined accused Vikas in as much, theirs

having formed an unlawful assembly, besides having perpetrated

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individual penal acts on the person of the injured/complainant renders

all to be vicariously liable . The learned court below hence, ought to

have held them guilty for the charge. It appears that it recorded findings

of acquittal against the accused on the strength of gross mis-appreciation

of evidence on record as also on gross non-application of the apposite

law to the facts at hand. Consequently the learned trial Court has

committed a legal misdemeanor which necessitates interference by this

Court, as such the appeal preferred by the State is allowed and the

accused are convicted for theirs having committed offence punishable

under Sections 307 read with Sections 147,148 and 149 IPC.

Accordingly the impugned judgment of the learned trial Court is set

aside. The Convicts be produced before this Court on 7.10.2014 for

hearing them on quantum of sentence.

(Rajiv Sharma)

Judge

24.9.2014 (Sureshwar Thakur)

(priti/Jai) Judge

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