State Of Himachal Pradesh vs Coram
2021 Latest Caselaw 3582 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No.614 of 2008

Judgment reserved on: August 3, 2021 Date of Decision: August 5, 2021

State of Himachal Pradesh ...Appellant

Versus

Hoshiar Singh

Coram:

r to ...Respondent.

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1

For the Appellant : Mr. Nand Lal Thakur, Additional Advocate General, Mr. Kunal Thakur, Dy. Advocate

General and Mr. Ram Lal Thakur & Mr. Sunny Dhatwalia, Assistant Advocates

General, for the State.

For the Respondent :Mr. Bhuvnesh Sharma, Advocate.

THROUGH VIDEO CONFERENCE

FIR Number 275 of 2003 dated 18.11.2003, under Section 452, 354 IPC read with Section 3(i)(xi) of SC&ST Act, registered at Police Station, Hamirpur, H.P.

Whether reporters of Local Papers may be allowed to see the judgment?

Criminal 144-I of 2004/90-II of 2004, decided on 14.12.2006 Case Number by Chief Judicial Magistrate, Hamirpur, H.P. Cr. Appeal 05 of 2007, decided on 24.8.2008 by Sessions Judge,

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    Number         Hamirpur, H.P.


    Anoop Chitkara, Judge

Challenging the acquittal of convict by 1st Appellate Court, the State has come up before this Court.

2. On 18.11.2003, the complainant accompanied with her husband and mother-in-law visited the Police Station and informed about criminal incident. She stated that she resides

alongwith her husband, father-in-law and mother-in-law. Her

husband is a Tailor and he goes for work in the morning and returns in the evening. On 17.11.2003, her mother-in-law had

gone to her maternal home and father-in-law was also not at home. Thus, she was all alone. At about 7:15 p.m., when she had

completed her household chores and was in the process of making

dinner and also waiting for her mother-in-law and father-in-law, then she heard the noise of footsteps. After that, somebody

knocked at the door. She inquired as to who was outside the door, then the person asked her to open the door and stated that he wanted to talk to her. She refused to open the door, then said person pushed the door and it opened up. The complainant fell down due to impact of forcible opening of the door which had hit her. She noticed that accused Hoshiar Singh was at the door. He

immediately came inside and caught hold of her from her arm. On this, she snubbed him for what he was doing and made commission. On this, he gagged her mouth and put his hand

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inside her mouth and also caught hold of her from her neck. She pushed him and came out and then raised cries. On this, he

started beating her with fist blows and slaps and also hurled filthy abuses upon her. On this, she made further cries and then he ran away. After that, when her husband and father-in-law reached the

home she informed them about the occurrence. After that, they informed the Panchayat.

r They asked them to come in the morning. Based on this, the Police registered the FIR captioned

above.

3. The Investigator produced the complainant for her medical examination. In the history given by the complainant to

the Doctor she revealed pain in the upper arm but the Doctor did not notice any apparent injury. However, he noticed bluish

abrasion on the left knee and one pinkish abrasion on the upper

lip. She was also suggested X-ray of upper arm but no fracture was deducted. The Doctor gave MLC (Ex.PW6/A).

4. The Investigator also prepared a site plan Ex.PW8/B. After conclusion of the investigation, the Officer-in-charge of the Police Station filed report under Section 173 (2) Cr.PC.

5. Vide order dated 22.5.2006, learned Chief Judicial Magistrate framed charges against the accused for commission of

offences punishable under Sections 452 and 354 IPC. The accused did not plead guilty and claimed trial.

6. In the trial Court, the victim testified as PW-1. The

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prosecution also examined her father-in-law, Roshan Lal as PW-2 and other witnesses. After completion of prosecution evidence,

the incriminating evidence was put to the accused under Section 313 Cr.PC. The accused admitted that the victim was residing alongwith her husband, father-in-law and mother-in-law.

However, denied all other incriminating circumstances. In answer to question No.26, the accused stated that he had a

litigation with his uncle who has good relations with the

complainant, at whose instance a false case was registered.

7. Learned trial Court found the accused guilty and convicted him for commission of offences punishable under

Sections 451 and 354 IPC and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of

Rs.3,000/- and in default to undergo simple imprisonment for a

period of three months for the commission of offence punishable under Section 451 of the IPC and to undergo rigorous

imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of two months for commission of offences punishable under Section 354 of the IPC.

8. Challenging the aforesaid conviction, the convict filed an appeal before learned Sessions Judge, Hamirpur under Section

374 Cr.PC, who accepted the appeal and set aside the impugned judgment of conviction and sentence and acquitted the appellant of the charges framed against him, on the grounds of identity.

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9. Challenging the aforesaid acquittal, the State came up before this Court by filing this appeal under Section 378(3)

Cr.PC.

ANALYSIS AND REASONING

10. In the earliest version recorded in FIR (Ex.PW1/A),

the victim stated that when somebody knocked at the door, she inquired about such persons and refused to open the door. Since

the victim refused to open the door, the said persons forcibly

opened the door and such forcible opening hit the victim and she fell on the flour. It implies that initially the door was bolted, that is why the tress-passer used force to open the same. Due to

thertia the door hit the victim who was not in motion and due to its impact fell down. A perusal of the site plan Ex.PW8/B does

not mention any forcible opening of the door. In fact, in the site

plan, the Investigator did not bother to mention the door which was forcibly opened. In case if the victim was telling the truth

then there should have been tell tale signs of loosened lock or bolt.

11. The victim who testified as PW-1 stated in her examination-in-chief that the door was closed. Somebody raised voice and asked him to open the door. On this, she refused to open and stated that he could talk to her husband when he would

reach home. After that the said person started pushing the door with force and due to such force the door opened. This establishes that the door was bolted. In cross-examination she

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specifically admitted that she had put bolt (Kundi) on the door from inside and such bolt (Kundi) broke.

12. The Pradhan who testified as PW-7 also did not state about tell tale signs of possible forcible opening of the door. The Investigator SI Desh Raj who testified as PW-8 did not state

about any investigation about forcible opening of the door. In cross-examination, the Investigator specifically stated that the

complainant did not show to him the loosened or broken bolt of

the door. He further clarified that even he did not notice the same. The most primary evidence of the entire prosecution case is forcible entry and as a consequence the bolted door opened.

Given that the broken bolt or loosened bolt would be most significant evidence, the absence of such broken bolt on the site

plan and the statement of Investigator that during investigation

neither the complainant showed him the broken bolt nor he on his own notice the same, would certainly affect the credibility of the

allegations of the victim as well as the prosecution case itself. On this point alone, learned trial court was wrath to accept the prosecution and to hold the accused guilty. Although, learned Appellate Court has acquitted the accused on the ground of identification but there is no discussion qua this aspect. The reasons assigned by learned Appellate Court for acquittal of the

accused and dismissal of the prosecution case cannot be overturned.

Thus, given above, there is no merit in the appeal filed by

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the State and the same is dismissed. The bail bonds are discharged accordingly.

Pending application(s), if any, are also closed.

(Anoop Chitkara), Judge.

August 5, 2021 (KS)