State Of Himachal Pradesh vs Unknown
2021 Latest Caselaw 3963 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 17TH DAY OF AUGUST, 2021

                                     BEFORE

                 HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                   .

                     CRIMINAL APPEAL NO. 227 OF 2019


    Between:-





    STATE OF HIMACHAL PRADESH
                                                                 ... APPELLANT
    (BY MR. SUDHIR BHATNAGAR
    AND MR. DESH RAJ THAKUR,





    ADDITIONAL ADVOCATES GENERAL
    WITH MR. R.P. SINGH AND
    MR. NARINDER THAKUR,
    DEPUTY ADVOCATES GENERAL)

    AND

    SANJEEV KUMAR ALIAS SANJU
    SON OF SHRI NAND LAL,
    RESIDENT OF VILLAGE NERI (NARAL),
    POST OFFICE, ROHAL, TEHSIL JHANDUTTA,
    DISTT. BILASPUR, H.P.


                                                               .. RESPONDENT
    (MR. PRASHANT SHARMA AND
    MR. AJIT SHARMA, ADVOCATES)
    Whether approved for reporting. Yes.




    This petition coming on for orders this day, the court passed the following:





                                   O R D E R

Instant Cr. Appeal under S.378 CrPC filed on behalf of

appellant-State lays challenge to judgment of acquittal dated 1.9.2018

recorded by learned Special Judge, Bilaspur, in Sessions Trial No.4/7 of

2016 whereby accused/respondent (hereinafter, 'accused') came to be

acquitted of the charges framed under Ss. 354, 323, 506 IPC and S.3(10)

of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

2. Case of the prosecution, in nutshell, as emerges from the

record is that the prosecutrix PW-1 lodged a written complaint Ext. PW-

.

1/A with the Police Station alleging that she belongs to the Scheduled

Caste and accused belongs to a Rajput community. She alleged that

whenever her family members came in front of the accused, he not only

threatened them but also proclaimed "Oh Chamaro mein tumhe khatam kar

dunga"" and also hurled abuses at them. Complainant also alleged that

the accused criminally intimidated her minor daughter, while she was

coming back from school and on 17.12.2014, at 5.45 pm, while she was

going to the well for bringing water, accused caught hold of her breasts

with his hands and proclaimed "Aaj mein teri ijjat loot lunga aur tum

Chamaron ko sabak sikhaoon ga." Prosecutrix cried for help and pushed

accused to rescue herself and in the meantime, her husband PW-2

Sulekha Ram and mother Kalsi Devi, reached spot and accused started

pelting stones, as a result of which husband of the complainant suffered

injuries. On the basis of written complaint Ext. PW-1/A made to

Superintendent of Police, Bilaspur, FIR Exhibit PW-6/A came to be

registered against the accused at Police Station Sadar, Bilaspur and

endorsement to this effect is PW-7/A. After completion of investigation

police presented Challan before learned Judicial Magistrate 1st Class,

Bilaspur, who vide order dated 14.1.2016 committed the case to the

Special Judge i.e. Sessions Judge, Bilaspur, for trial. Learned Special

judge, Bilaspur, having found prima facie case against accused

proceeded to frame charges against them for commission of offence

under Ss.354, 323, 506 IPC and S.3(10) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. Prosecution examined as many as 12 witnesses to prove its

.

case, whereas, accused despite opportunity, did not lead any oral

evidence but tendered documents, Ext. DA to DH and DJ to DN. While

making statement under S.313 CrPC, accused denied the case of

prosecution in toto and claimed himself to be innocent.

4. Learned trial Court on the basis of evidence collected by the

prosecution, held accused not guilty and acquitted him. In the aforesaid

background, appellant has approached this court in the instant appeal,

praying therein for conviction of the accused after setting aside judgment

of acquittal passed by learned trial Court.

5. Precisely the allegations of the prosecution against accused

are that on the date of alleged incident, he apart from making castiest

remarks, also made an attempt to outrage the modesty of

victim/prosecutrix and advanced unwelcome and explicit sexual overtures.

As per prosecutrix, her husband Sulekha Ram and Kalsi Devi (mother)

reached the spot of incident after having heard her cries and the accused

pelted stones upon husband of complainant, as a consequence of which

he suffered simple injuries.

6. To the contrary, accused pleaded that he has been falsely

implicated due to personal enmity and at no point of time, he made

castiest remarks or made any attempt to outrage the modesty of the

victim/;prosecutrix. Accused claimed that he was given beatings by

complainant and thereafter with a view to save themselves form legal

action, planted false case against him.

7. Having heard learned counsel for the parties and perused

material available on record vis-à-vis findings of learned court below while

.

acquitting accused, this court finds no force in the submission of learned

Additional Advocate General that learned court below failed to appreciate

evidence in right perspective rather, having examined entire evidence,

this court has no hesitation to conclude that the story put forth by

prosecution rightly came to be rejected being highly unbelievable and

improbable.

8. In the case at hand, alleged incident took place on

17.12.2014 at 5.45 pm but written complaint to the Superintendent of

Police Bilaspur came to be lodged on 18.12.2014 at about 1.35 pm. There

is no plausible explanation on record, qua the delay in lodging FIR.

Victim-prosecutrix while deposing before learned court below stated that

after the incident, she got scribed Exhibit PW-1/A from Charan Singh, who

is her relative and is a shopkeeper but such statement of victim-

prosecutrix is not supported/corroborated by PW-2 Sulekha Ram, who in

his cross-examination denied that Ext. PW-1/A was got scribed form

Charan Singh as stated by the prosecutrix. She further deposed that on

the next day of the incident, they visited office of Superintendent of Police

Bilaspur and got statements of her and her husband recorded therein.

She has no knowledge as to for how long, they remained in the office of

Superintendent of Police, Bilaspur. She deposed that after moving

application she alongwith her husband proceeded to the hospital and

thereafter, to the Police Station, however, aforesaid version is totally

contrary to the contents of Ext. PW-1/A. Record though clearly reveals

that the complaint dated 18.12.2014 was addressed to Superintendent of

Police, Bilaspur but same was directly submitted to the Police Station

.

Sadar, Bilaspur. No evidence ever came to be led on record by

prosecution that the complainant and her husband visited Superintendent

of Police office on 17.12.2014 and filed complaint, Ext.PW-1/A.

Prosecution has failed to explain how and under what circumstance, Ext.

PW-1/A came to be received in the Police Station. If the contents of FIR

Ext.PW-6/A are perused, they suggest that the prosecutrix never went to

the office of Superintendent of Police, Bilaspur, rather, she filed

application Ext. PW-1/A in Police Station, on the basis of which, FIR Ext.

PW-6/A came to be registered. Though victim in her deposition before

learned court below claimed that at the time of filing of application to the

office of SP Bilaspur, her as well as her husband's statements were

recorded but no such evidence ever came to be led on record by

prosecution. Moreover, this court after having perused Ext. PW-1/A finds

that the prosecutrix at the time of filing initial complaint had alleged that

the accused made castiest remarks by stating "Aaj mein teri ijjat loot lunga

aur tum Chamaron ko sabak sikhaoon ga", however, contrary to aforesaid

specific allegation in the written complaint, Ext. PW-1/A prosecutrix made

altogether different version in the court while deposing as PW-1. In the court,

prosecutrix deposed that accused used words "Tum Chamaron ko khatam kar

dunga aur tum chamaron ko sabak sikhaoon ga." Version of the prosecutrix in

complaint, Ext. PW-1/A is totally contrary to her statement recorded on

oath in the learned trial Court.

9. Sulekha Ram, husband of the victim-prosecutrix, also gave

altogether a different version while deposing as PW-2. He deposed that

.

accused hurled abuses by saying that, ""Tum Chamaron ko khatam kar

dunga aur tum chamaron ko sabak sikhaoon ga." Aforesaid expression used

by PW-2 in his statement is contrary to the statement of prosecutrix. Since

at the time of making application, Ext. PW1/A, PW-2 and PW-1 were

together and they both had gone to Superintendent of Police office as

claimed by PW-1 i.e. victim prosecutrix, there was no occasion for the

prosecutrix and her husband to depose differently with regard to alleged

incident, while making their statements in the court of law. Similarly,

though the prosecutrix leveled allegation against accused that he teased

her minor daughter, while she was coming back from school to home but

such allegation never came to be proved in accordance with law.

10. Interestingly, prosecution in the case at hand failed to

examine, Kalsi Devi, mother of the prosecutrix, who could be a material

witness to corroborate the version put forth by prosecutrix and her

husband, Sulekha Ram, PW-2, because as per prosecution story, PW-2

Sulekha Ram and Kalsi Devi had reached spot after having heard cries of

victim/prosecutrix. There is no explanation on record, that why the

prosecution failed to examine aforesaid material prosecution witness.

Non-examination of aforesaid material prosecution witness creates

serious doubt about the correctness of story of prosecution with regard to

allegations leveled by victim against the accused. It has come in the

cross-examination of prosecutrix that prior to lodging of FIR in question,

she filed case in Police Station against another person namely Gaju Ram

qua castiest remarks but self stated that now that case stands settled.

Though prosecutrix denied the case of the accused that she had filed

.

case against one Pratap Chand that he has outraged her modesty but as

has been taken note herein above, she has admitted the factum with

regard to her having filed case against Gaju Ram on same allegations.

Prosecutrix denied case of accused that he filed case against one Satbir

under the provisions of Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and for molestation and received

Rs.25000 as compensation from Satbir Singh.

11. PW-8 SI Vijay Kumar who had an occasion to investigate

the case partly, in his cross-examination stated that during investigation,

he had filed status report, Ex. D1 which bears his signatures, perusal

whereof, reveals that during investigation, it was found that on 17.2.2014,

at 4.50 pm, some dispute arose inter se accused and husband of the

prosecutrix, Sulekha Ram in village Lehar, which is 100 meters from the

house of prosecutrix. This witness also deposed that no evidence was

found qua the offences alleged to have been committed by accused.

12. PW-11 Bhupinder Additinoal Superintendent of Police, who

partly investigated the case, deposed that he does not remember that the

houses of Nand Lal, Lal Singh, Karam Singh, nanak, Naseeb Singh etc.

are situated on the spot. He also denied that the house of Sarwan Singh

is also situate at a distance of 10-15 metres from the house of the victim.

This witness deposed that during investigation, he had tried to call the

persons including ward member from the locality, but nobody had any

knowledge about the occurrence in question. This witness further

admitted that there was nothing on record to show that statements of

victim and her husband were recorded in the office of Superintendent of

.

Police, Bilaspur, which otherwise falsifies the stand/claim of the victim,

PW-1, that immediately after the alleged incident they had visited office of

Superintendent of Police Bilaspur, and there her as well as her husband's

statements were recorded. This witness also deposed that no person was

found on the spot nor anyone heard abuses or castiest remarks, if any,

hurled by accused.

1. PW-9 Dr. Sandesh Guleria who examined the prosecutrix

and her husband, deposed that after medical examination of PW-2, some

swelling and tenderness on right leg shin area was seen but there was no

fracture. This witness deposed that he has examined prosecutrix vide

MLC Ext. PW-9/C and no visible injury was found. In his cross-

examination this witness admitted that both the MLC's of Sulekha Ram

and complainant, Exts. PW-9/B and PW-9/C do not bear signatures of the

injured.

2. In MLC Ext. PW-9/B of Sulekha Ram, alleged history of

beatings is mentioned whereas, as per prosecution story, Sulekha Ram

suffered injuries due to pelting of stones by the accused. However, there

is no finding if any by medical officer qua injury, if any sustained by

Sulekha Ram on account of his being hit by stone allegedly pelted by

accused. Most importantly during investigation, no stone ever came to be

taken into possession by the Investigating Officer.

3. After having examined evidence adduced on record by the

prosecution, this court has no reason to differ with findings of learned

Special Judge below that the statements made by material prosecution

witnesses PW-1 and PW-2 are totally contradictory to each other and

.

they do not inspire confidence. Version put forth by PW-8 and PW-9

otherwise creates serious doubt with regard to the correctness of the

version put forth by PW-1 and PW-2 and as such, same was rightly not

believed by learned Court below, while ascertaining guilt of the accused.

4. By now it is well settled that in a criminal trial evidence of the

eye witness requires a careful assessment and needs to be evaluated for

its creditability. Hon'ble Apex Court has repeatedly held that since the

fundamental aspect of criminal jurisprudence rests upon the well

established principle that "no man is guilty until proved so", utmost caution

is required to be exercised in dealing with the situation where there are

multiple testimonies and equally large number of witnesses testifying

before the Court. Most importantly, Hon'ble Apex Court has held that

there must be a string that should join the evidence of all the witnesses

and thereby satisfying the test of consistency in evidence amongst all the

witnesses. In nutshell, it can be said that evidence in criminal cases

needs to be evaluated on touchstone of consistency. In this regard,

reliance is placed upon the judgment passed by Hon'ble Apex Court in C.

Magesh and others versus State of Karnataka (2010) 5 Supreme Court

Cases 645, wherein it has been held as under:-

"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of

an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14)

"14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held

.

to be creditworthy the probative value of such

evidence becomes eligible to be put into the scales for a cumulative evaluation."

46. In a criminal trial, evidence of the eye witness

requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are

multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."

5. After perusing the statements of the prosecution witnesses

as well exhibits placed on record, two views are possible in the present

case and as such, the accused is entitled to the benefit of doubt. The

learned counsel for the accused has placed reliance on the judgment

passed by Hon'ble Apex Court reported in State of UP versus Ghambhir

Singh & others, AIR 2005 (92) Supreme Court 2439, wherein the

Hon'ble Apex Court has held that if on the same evidence, two views are

reasonably possible, the one in favour of the accused must be preferred.

The relevant paragraph is reproduced as under:-

"6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not

corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these

.

circumstances do create doubt about the truthfulness of the

prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but

since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same

evidence two views are reasonably possible, the one in favour of the accused must be preferred."

6.

The Hon'ble Division Bench of this Court vide judgment

reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P.,

latest HLJ 2008 (HP) 1150 has also concluded here-in-below:-

"25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved

to be false, the second can safely be believed, unless the same is unnatural or inherently untrue.

26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner

of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed.

27.Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony

of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.

7. Consequently in view of detailed discussion made above,

.

this court sees no illegality or infirmity in the judgment of acquittal

recorded by learned Court below, which is based on proper appreciation

of evidence and as such, no interference is called for, in result whereof,

present appeal fails and is dismissed. All pending applications stand

disposed of. Bail bonds, if any, furnished by the accused are cancelled.

     August 17, 2021
        (Vikrant)
                     r               to      (Sandeep Sharma)
                                                  Judge