Bhupinder Kumar vs State Of Himachal Pradesh

FIR NUMBER,"62/05 dated 28.02.2005 Registered in Police Station, Palampur, District Kangra

HP under Sections 307 read with Section 34 IPC

TRIAL COURT CASE NO.,"Number 20-P/VII-2006 Decided on 13/18.11.2009 by learned Sessions Judge

Kangra at Dharamshala, H.P.

Given the nature of evidence and absolutely no role by one of those two, certainly the other cannot be convicted with the aid of Section 34.",

Learned Sessions Judge after appraisal of the evidence acquitted Varinder Kumar and did not convict him even with the aid of Section 34 IPC.,

Nobody challenged the said acquittal and it has attained finality.,

Learned Sessions Judge relied upon the statement of PW-5, who has specifically named Bhupinder and went on to convict him for causing blow.",

Learned Sessions Judge did not find evidence of participation of the second person either by instigation or by words or gestures and concluded that the,

said person, who did not cause any blow was Varinder.",

The issue before this Court is that whether Bhupinder had caused the injuries or Varinder. Bhupinder is aggrieved by his conviction and has,

challenged the same before this Court whereas nobody is aggrieved by the acquittal of Varinder.,

In the earliest version recorded under Section 154 Cr.P.C., on the statement of Munish Walia injured, in the presence of other two spot witnesses,",

he specifically stated that both the persons are owners of Parihar Bus Service and he knew them by face but does not know their names. Munish,

Walia in his statement under Section 154 Cr.P.C. (PW-5/A) explicitly stated that out of those two, one gave him blow with ‘Darat’. At that",

time, he did not know their names as such he could not figure out the name of that person, who inflicted such blow. He has stated that he noticed the",

face of such person because of the headlight of the car, headlight of the bike and also the street-light.",

PW-6 Sanjay Walia, who had noticed the incident from his balcony, also stated that electricity bulb outside his house was on and he could",

recognize the assailant in that light. Thus there is sufficient evidence of availability of light and as such light was coming from 3 or 4 sources, which is",

street light, headlight of the car, headlight of the bike, and bulb on the balcony of PW-6, Sanjay Walia.",

PW-4 Pankaj Kumar, in his examination-in-chief, explicitly named Bhupinder Singh as the person who has hit Munish Walia on his head with the",

‘Darat’. Surprisingly, Public Prosecutor did not ask Pankaj Kumar to identify Bhupinder Kumar in the Court. Probably he relies on the",

statement of PW-4 Pankaj Kumar, testified that he knew accused Bhupinder and Balwinder Singh, present in the Court. This statement is incomplete",

because although Bhupinder Kumar is one of the accused, but the other accused is Varinder not Balwinder. It means Pankaj Kumar did not know",

both the accused well. Given above, it was imperative for learned Public Prosecutor to have identified the accused in the Court, who had given the",

blow, but he failed to do so.",

PW-5 Munish Walia, the injured, who had explicitly stated in his earlier statement under Section 154 Cr.P.C. that he can recognize the accused,",

but do not know their names. Stated in the Court that he came to know their names from a person named Happy. He specifically stated that because,

he had told the names, as such, he knows their names as Varinder and Bhupinder. In Court when he was asked to identify accused Bhupinder and",

Varinder then he conversely identified Bhupinder as Varinder and Varinder as Bhupinder.,

PW-6 Sanjay Walia, who had seen the occurrence from Balcony was asked by the Public Prosecutor to identify the accused Bhupinder and",

Varinder in the Court. However, even this witness (Sanjay Walia PW-6) wrongly identified Varinder as Bhupinder and vice-versa. PW-6 Sanjay",

Walia, in his examination-in-chief explicitly pointed towards Varinder as the person, who had inflicted blow on Munish Walia.",

Learned trial Court did not find the evidence against Varinder as convincing and acquitted him. The State did not consider it appropriate to,

challenge the said judgment of acquittal. Even the injured did not take any step to challenge the same in this Court. Thus, the acquittal of Varinder as",

pronounced by learned Sessions Judge, way back in 2009 has attained finality and cannot be reopened after twelve years of passing of the judgment.",

Given that PW-5 Munish Walia and PW-6 Sanjay had explicitly pointed out towards Varinder as the person, who had inflicted the sole blow, would,",

under no stretch of imagination, be taken as Bhupinder, the appellant herein. The other spot witness PW-4 was not asked by the Public Prosecutor to",

identify the accused. Thus the only one set of evidence is available regarding identification and that the blow was caused by accused Varinder.,

The other piece of evidence, which the prosecution tried to connect against Bhupinder was recovery of ‘Darat’ Ex.P-2, vide memo Ex.",

PW-1/A. However, both the witnesses of the recovery i.e. PW-1 Ramesh and PW-2 Balbir did not support the recovery at the instance of Bhupinder",

and declared hostile. Even in their cross-examination nothing could be elicited to come to a conclusion that recovery of ‘Darat’ was at the,

instance of Bhupinder. Thus, the evidence adduced by the prosecution against Bhupinder Kumar convict is not sufficient to arrive at a conclusion of",

conviction and he is entitled to benefit of doubt.,

Given above, the appeal is allowed and the judgment of conviction passed in the aforementioned case by learned Sessions Judge, Kangra at",

Dharamshala is set aside. Bail bonds, if any, furnished by the accused are cancelled and discharged. Pending application(s), if any, shall also stand",

disposed of.,