State Of H.P vs Narender Kumar
2023 Latest Caselaw 3193 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. Appeal No. 267 of 2010 Reserved on : 17.03.2023 Decided on: 31st March, 2023

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State of H.P

.......Appellant Versus

Narender Kumar ...Respondent

Coram

The Hon'ble Mr. Justice Virender Singh, Judge.

        Whether approved for reporting?1
        For the appellant:                          Mr. J.S. Guleria, Mr. Sumit Sharma,
                                  r                 Mr. Rohit Sharma and Ms.

                                                    Priyanka      Chauhan,       Deputy
                                                    Advocates General.
        For the respondent:                         Mr. Rajiv Rai, Advocate.


        Virender Singh, Judge

Appellant-State of Himachal Pradesh has filed the

present appeal under Section 378 of the Code of Criminal

Procedure (hereinafter referred to as the 'Cr.P.C.) against the

judgment dated 27.02.2010 passed by the Court of learned

Judicial Magistrate First Class, Court No.4, Hamirpur, District

Hamirpur, H.P. (hereinafter referred to as the 'learned trial

Court'), in case titled as State vs. Narender Kumar.

2. By way of judgment dated 27.02.2010, the learned

trial Court has acquitted the respondent (hereinafter referred

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

to as the 'accused') from the offences punishable under

Sections 354 and 504 of the Indian Penal code (hereinafter

referred to as the 'IPC'), which has been initiated on the basis

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of FIR No. 28/2006, registered with Police Station, Sujanpur,

District Hamirpur, H.P.

3. Facts in brief, necessary for adjudication of the

present appeal, may be summed up as under:-

4. The police of Police Station, Sujanpur has filed the

report under Section 173(2) Cr.P.C before the learned trial

Court on the following facts:-

5. On 03.03.2006, at about 12.00 (noon), complainant

appeared before the police and got recorded her statement

under Section 154 Cr.P.C., disclosing therein that she is

studying in GSSS, Sujanpur in class +2. Her father has expired

about 12 years ago and thereafter her mother Sushma Devi

has solemnized marriage with Narender Kumar. After the

second marriage of the mother of the complainant, she is also

stated to be residing with her. According to the complainant,

her step father is drunkard person and a taxi driver by

profession. He came back to the house under the influence of

liquor. Prior to the date of occurrence, according to the

complainant, her step father Narender Kumar had also done

the obscene acts with her, but due to social stigma, she has

not disclosed these facts to anyone. However, on one or two

occasions, she has apprised this fact to her mother who had

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also tried to make him understand, but, step father of the

complainant had beaten the mother of the complainant.

6. It is her further version that on 03.03.2006 at about

12.30 a.m., the step father of the complainant came to his

house under the influence of liquor and started abusing them.

When, the complainant came to know about this fact that her

father had consumed liquor, as such, she has not opened the

door, upon which, the father of the complainant (accused)

had started throwing bricks on the door. When, the

complainant opened the door, then the accused, all of

sudden, caught the complainant in his arms. When, the efforts

were made by the complainant to get her freed, with the help

of her mother, at that time, the accused torn the shirt worn by

the complainant. The complainant got lodged that her step

father, with an intention, to outrage her modesty, caught her

in his arms and torn the shirt worn by her. The complainant

was saved by her mother. Lastly, she has got recorded that

she has not suffered any injury, as such, she is not interested for

her medical examination.

7. On the basis of above facts, the police registered

case under Sections 354 and 504 IPC and criminal machinery

swung into motion.

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8. The police filed the challan after complying with

the provisions of Section 207(2) Cr.P.C. The learned trial Court

found a prima-facie case for the offences punishable under

Sections 354 and 504 IPC.

9. The accused has been put to notice of accusation

accordingly. The accused has not pleaded guilty, as such, the

prosecution has been directed to adduce evidence.

Consequently, the prosecution has examined as many as six

witnesses.

10. After closure of the prosecution evidence, the

entire incriminating evidence appearing against the accused

was put to him, in his statement recorded under Section 313

Cr.P.C.

11. The accused has denied the entire prosecution

case and termed the case of the prosecution as false, being

foisted against him on behalf of the complainant and her

mother, as the mother of the complainant, according to the

accused, wants to grab his house. To prove the said defence,

the accused has examined one witness in his defence.

12. After hearing learned APP and the learned

defence Counsel, the learned trial Court has acquitted the

accused from the above offences vide judgment dated

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27.02.2010, which has been assailed before this Court by the

State, inter-alia, on the grounds that the learned trial Court has

failed to consider the prosecution evidence in its right

perspective. The testimony of the prosecution witnesses has

wrongly been discarded by the learned trial Court without

assigning any cogent reasons.

13. According to the learned Deputy Advocate

General, complainant PW-6 has categorically stated before

the Court that her father came to the house in a drunkard

condition and caught hold her with an intention to outrage

her modesty. These allegations have fully been supported by

the deposition of PW-1, who is mother of the complainant.

14. The findings have been assailed that the learned

trial Court has wrongly acquitted the accused from the

offences, for which, he has been charge-sheeted.

15. On the basis of above facts, learned Deputy

Advocate General has prayed that the appeal may kindly be

accepted by setting aside the judgment of acquittal and by

convicting the accused for the offences, for which, the notice

of accusation has been put to him by the learned trial Court.

16. Per contra, Mr. Rajiv Rai, learned counsel

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appearing for the accused, has supported the judgment of

acquittal on the ground that the learned trial Court has rightly

appreciated the evidence in its right perspective and

judgment of acquittal does not require any interference by this

Court.

17. In order to decide the controversy involved in the

present appeal, it would be just and proper for this Court to

discuss the oral as well as documentary evidence adduced by

the prosecution to substantiate the charges framed against

the accused.

18. As stated above, the prosecution, in the present

case, has examined as many as six witnesses. Complainant,

who, by lodging the FIR, has put the criminal machinery into

motion, has appeared as PW-6 and deposed on oath that in

the year 2006, she was studying in +2 class at Sujanpur. Her

father has expired in the year 1999. Thereafter, she started

residing with her step father (accused). The accused is Driver

by profession. On 03.03.2006 at about 12.30 mid night, the

accused came back to the house under the influence of

liquor and made efforts to break the door of the house by

throwing bricks and stones. Thereafter, the accused has

directed the mother of this witness to open the door. He had

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beaten the mother of the complainant and with an ulterior

motive, the accused caught the complainant in his arms and

also torn her shirt. The complainant made efforts to get her

freed from the clutches of the accused and ran away.

19. On 03.03.2006, she appeared before the police

and got lodged the report. Firstly, they had gone to lodge the

report at 7.00 a.m., but, due to her examination on that day,

she was allegedly advised to first appear in the paper.

Thereafter, FIR Ext. PW-6/A was lodged. Police visited the spot

on that day. The police noticed the damaged door on the

spot. The torn shirt was handed over by this witness to the

police. She has duly identified shirt Ext. P-1, which was taken

into possession vide memo Ext. PW-2/A.

20. In the cross-examination, this witness has admitted

that when she was caught by the accused, she had

screamed. There were three houses situated near the house

of the complainant where 10-15 persons used to stay, but she

has voluntarily stated that they are not in talking terms with the

occupants of those houses. No-one came out after hearing

her screaming. According to her, no-one came out as the

accused daily used to come back to the house under the

influence of liquor. This witness has further admitted that the

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other houses are situated at a considerable distance from their

house. This witness further admitted that on the day of

incident, the accused had gone in the marriage party of his

brother. This witness further admitted that the marriage party

returned back at about 10.00-11.00 a.m. on 03.03.2006. The

examination of this witness was over by 12.00 noon. This

witness had gone to the police station between 12.00 pm to

2.00 p.m along-with her mother.

21. The statement of her mother was recorded in the

police station.

22. This witness has further deposed that she has got

recorded in her statement that the accused had thrown bricks

and stones in order to break the door. Similarly, she has got

recorded in her statement about the beatings given to her

mother by the accused, whereas, the same has not been

recorded in the statement under Section 161 Cr.P.C.

Complainant and her mother fled away from the house when

accused had beaten them. After fleeing from their house,

they had spent the night in an under constructed house. She

has admitted that neither she nor her mother were invited in

the marriage of the brother of the accused. However, her

step brother and sisters, who are sons and daughters of

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accused, were invited.

23. She has further admitted that children of the

accused came back on 04.03.2006, after the marriage. She

has feigned her ignorance that the family members of the

accused were not happy with the marriage of accused with

the mother of this witness. This witness further admitted that her

mother had divorced the father of this witness and solemnized

marriage with the accused. This witness has admitted that her

mother had obtained the divorce from the accused after

getting a sum of Rs.2,35,000/-. She has admitted that neither

she nor her mother were medico legally examined. Rest of the

suggestions, put to her, by learned defence Counsel, were

denied by this witness.

24. The mother of the complainant has appeared as

PW-1 and deposed that she was married with Tulsi Ram in the

year 1988 and was blessed with two children, complainant

and her brother Ishu. The father of this witness had expired in

the year 1992. Thereafter, she has solemnized the marriage

with the accused in the year 1992. Out of this wedlock, two

children namely, Sandeep and Sangeeta were born.

Narender (accused) is a taxi driver by profession. On

03.03.2006, at about 12.30, in mid night, her husband came

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back. Her husband i.e. accused firstly demanded the meal

and thereafter started abusing them. As soon as the

complainant had gone to accused to provide her meal, the

accused caught her daughter and torn her clothes. Efforts

were made to make her free. This witness was beaten by the

accused and was threatened by the accused by saying that

let Silki solemnize marriage with him, otherwise, he will finish her.

Thereafter, with great difficulty, both of them had fled away

from there and spent a night at the house of their neighbour.

25. According to this witness, she has sustained injury

on her feet and tooth bite marks were there on the back of

the complainant. On 04.03.2006, matter was reported by this

witness by visiting the police station, Sujanpur along with

complainant.

26. In the cross-examination, this witness has deposed

that her statement was recorded in the police station on

03.03.2006 at about 12. 30 in the mid night. This witness has

admitted that she has voluntarily solemnized marriage with the

accused. She has further admitted that the said marriage was

solemnized despite opposition of the family members of the

accused. This witness has admitted that she had obtained

divorce from her first husband Bhuvnesh from the Court of

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learned District Judge and thereafter she has solemnized

marriage with the accused. She has admitted that her first

husband had expired after she had solemnized marriage with

the accused.

27. This witness has admitted that she has filed a

maintenance application against the accused. In the said

case, a compromise has been effected between this witness

and the accused after she has received a sum of Rs.2,35,000/-.

She has further admitted that the accused is still paying the

maintenance to the children of this witness. She has also

admitted that on 02.03.2006, marriage party (Baraat) of the

brother of accused had gone to District Kangra. However, this

witness has not joined the said marriage party, as she was not

invited.

28. Narender (accused) and his children had joined

the marriage party. This witness has further admitted that she

used to request the accused to transfer the house in her

name, then voluntarily stated that she used to impress upon

him to transfer the same in the name of her son. This witness

has admitted that material facts with regard to demand of the

accused regarding meals, threatening and spending night at

the house of neighbour, have not been mentioned in the

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statement to the police.

29. Learned defence counsel has successfully

confronted this witness regarding the above improvements.

She has further deposed that neither she nor her daughter had

been medically examined.

30. PW-2 Constable Kulbir Singh has witnessed the fact

that complainant Silki has produced the shirt to the police,

which was taken into possession by the police.

31. PW-3 Ravi Kumar has been examined as

independent witness in this case, but, when appeared in the

witness box, he has not supported the case of the prosecution.

As such, on the request of learned APP, this witness has been

declared hostile by the learned trial Court and the learned

APP has been permitted to cross-examine him. Despite the

lengthy cross-examination by learned APP, nothing material

could be elicited from him except for the admission of this

witness regarding his signatures over Ext. PW-2/A.

32. PW-4 HC Brahm Dass has partly investigated the

case and after visiting the spot, he has prepared the spot map

Ext. PW-4/A. Vide memo Ext. PW-2/A, shirt Ext. P-1 was taken

into possession, which was produced by complainant PW-6.

This witness has admitted that the mother of the complainant

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has obtained the divorce from the accused after receiving a

sum of Rs. 2,35,000/-.

33. PW-5 SI/SHO Raj Kumar has prepared the challan in

this case.

34. As stated above, the accused in this case has

examined DW-1 Vijay Kumar. According to this witness, on

02.03.2006, there was marriage of his younger brother. The

marriage party had gone to the bride's house on 02.03.2006 at

about 6.00 p.m. Narender was also with them. On 03.03.2006,

the said marriage party returned back at about 12.00 in the

noon. Although, the mother of the complainant was invited,

but she has not joined the marriage. In the cross-examination,

this witness has given the age of the children of accused as 10

and 12 years. This is the entire evidence on record.

35. The prosecution, in this case, has relied upon the

statements of PW-1 and PW-6. PW-6 is the complainant,

whereas, PW-1 is her mother. As per the stand taken by PW-1,

she was earlier married with one Tulsi Ram and during his

lifetime, after obtaining divorce, she has solemnized marriage

with the accused and has been blessed with two children.

Complainant PW-6 is the daughter of PW-1 and was residing

with the accused.

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36. The evidence of PW-1 and PW-6 is required to be

scrutinized by this Court with extra care and caution. The

possibility of lodging the case on account of animosity

between PW-1 and accused cannot be ruled-out completely

in this case, as this witness, when appeared in the witness box,

has given different version on oath by deposing that on

03.03.2006 at about 12.30 mid night, accused came and

demanded the food and started abusing them. When PW-6

has provided food to him, then, he had caught the

complainant in his arms and torn her clothes, whereas,

complainant PW-6 has given a totally different version. In the

FIR Ext. PW-6/A, she has deposed that on 03.03.2006 at about

12. 30 mid night, her step father (accused) came under the

influence of liquor and started abusing them. Since this witness

came to know about her father being there, as such, she has

not opened the door, upon which, accused allegedly started

throwing stones and bricks on the door. When the door was

opened, the accused, all of a sudden, had caught the

complainant in his arms and when efforts were made by PW-6

to free herself, then, her mother helped her, upon which, the

accused torn the shirt of the complainant, with an intention to

outrage her modesty, whereas, a different version has been

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given by PW-1. However, complainant (PW-6) had deposed

that on the day of incident, when accused came under the

influence of liquor, he started throwing stones and bricks in

order to break the door. Thereafter, accused has directed the

mother of this witness to open the door, and thereafter had

beaten the mother of this witness and with an ulterior motive,

caught her in his arms and torn her shirt.

37. The contradictory statements given by PW-1 and

PW-6 have rightly been considered by the learned trial Court,

as, it has been admitted by PW-1 that she has compromised

with the accused after getting a sum of Rs. 2,35,000/-. All these

facts demonstrate the strained relations between the accused

and PW-1, as such, complainant PW-6 has every axe to grind

against the accused by lodging such type of case. Moreover,

the very presence of the accused at the time of alleged

incident becomes doubtful, in view of the admission of PW-6

when she has admitted that on the day of incident, the

accused had gone to Kangra in the 'Baraat' of his younger

brother and the marriage party had returned back at about

10.00-11.00 am. When the very presence of the accused on

the spot is doubtful, then no reliance can be placed on the

deposition of PW-1 and PW-6.

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38. The learned trial Court has rightly considered the

evidence of the prosecution witnesses and by no stretch of

imagination, the findings, so recorded by the learned trial

Court, does fall within the definition of 'perverse'.

39. Accordingly, this Court finds no substance in the

appeal and the same is accordingly dismissed, by affirming

the findings recorded by the learned trial Court. Bail bonds

are cancelled and the surety is discharged.

40. Record be sent back.

    March 31, 2023                                     ( Virender Singh )
          (naveen)                                           Judge