State Of H.P vs Parveen Kumar & Ors
2024 Latest Caselaw 11003 HP

Himachal Pradesh High Court

State Of H.P vs Parveen Kumar & Ors on 5 August, 2024

Neutral Citation No. ( 2024:HHC:6331 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 300 of 2010

.

Reserved on: 11.07.2024 Date of Decision: 05.08.2024

State of H.P. ....Appellant Versus

Parveen Kumar & Ors.

                         r                          ....Respondents/Accused.
Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No.

For the Appellant : Mr. Lokender Kutlehria, Additional

Advocate General.

For the Respondents/ : Mr. Anil Kumar God, Advocate. Accused

Rakesh Kainthla, Judge.

The present appeal is directed against the judgment

dated 28.01.2010 passed by the learned Judicial Magistrate First

Class, Court No. II, Dehra, District Kangra, H.P. (learned Trial

Court), vide which respondents (accused before the learned Trial

Court) were acquitted of the commission of offences punishable

under Sections 341, 354 & 323 read with Section 34 of Indian Penal

Code (IPC) (Parties shall hereinafter be referred to in the same

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

manner as they were arrayed before the learned Trial Court for

convenience).

.

2. Briefly stated, the facts giving rise to the present

appeal are that the complainant filed a complaint before the

learned Trial Court for the commission of offences punishable

under Sections 341, 354 & 323 read with Section 34 of the IPC. It

was asserted that the complainant (name being withheld to

protect her identity) used the land of the accused to approach her

land. The accused objected to the use of their land. Member of the

Panchayat and the villagers went to the spot for inspection on

12.06.2001 at about 05:15-05:30 PM. Accused Parveen Kumar, his

wife and sister started beating the complainant during the spot

inspection. The other accused gave beating to her with kicks and

fist blows. The accused tore her clothes. Birbal gave his Tamba

and Phulan Devi gave her shawl to the complainant to cover her

naked body. The victim went to her home. The matter was

reported to the police and FIR No. 49/2001 was registered. The

police did not take any action and sent the matter to Gram

Panchayat. Hence, the complaint was filed before the Court for

taking action against the accused.

3. The learned Trial Court recorded the preliminary

evidence and held that the police challan and the complaint were

.

to be tried together as per Section 210(2) of Cr.PC and ordered that

both these cases be tried together.

4. The learned Trial Court put the Notice of Accusation to

accused Parveen Kumar for the commission of offences

punishable under Sections 341, 354 & 323 read with Section 34 of

the IPC and Shashi Prabha and Nirmala Devi for the commission

of offences punishable under Sections 341 and 323 read with

Section 34 of IPC. The accused pleaded not guilty and claimed to

be tried.

5. The prosecution examined 10 witnesses to prove its

case. Dr. K.K. Rattan (PW1) conducted the medical examination of

the informant. Balbir Singh (PW2), Ram Lok (PW3), Rachhpal

Singh (PW5), Phulan Devi (PW6), Kuldeep Singh (PW7) and Kalan

Devi (PW8) are the eyewitnesses. The complainant (PW4)

narrated the incident. ASI Ravindra Devi (PW9) conducted the

investigation. ASI Kuldeep Singh (PW10) recorded the FIR.

6. The accused in their statements recorded under

Section 313 of Cr.P.C. denied the prosecution case in its entirety.

They admitted that the Panchayat had visited the spot. They

denied that any quarrel had taken place. They stated that Kalan

Devi, Kuldeep Singh and Phulan Devi were not present at the spot.

.

The complainant deposed falsely against the accused due to

enmity. They were innocent. The statement of Sudha Kaundal

(DW1) was recorded in defence.

7. The learned Trial Court held that the prosecution

evidence was not sufficient to prove that the accused Parveen

Kumar tore the clothes of the victim to outrage her modesty. Ram

Lok (PW3), an independent witness, who was Up-Pradhan of

Gram Panchayat, Gummer at the relevant time did not support the

prosecution case. Phulan Devi(PW6), the real aunt of the

complainant's husband, also did not support the prosecution case.

The testimony of Kalan Devi(PW8) was not reliable because she

was inimical to the accused. Statement of Sudha Kaundal(DW1),

Pradhan, Gram Panchayat, Gummer showed that no such incident

had taken place. The possibility of the clothes getting torn during

the scuffle could not be ruled out. No injuries were noticed by the

Medical Officer. Hence, the accused were acquitted of the

commission of offences punishable under Sections 341, 354, and

323 read with Section 34 of IPC.

8. Being aggrieved from the judgment passed by the

learned Trial Court, the State has filed the present appeal. It is

.

asserted that the judgment is based upon hypotheses, surmises

and conjectures. The learned Trial Court appreciated the evidence

in a perfunctory manner and acquitted the accused on flimsy

grounds. The testimonies of prosecution witnesses were discarded

without any cogent reasons. The prosecution witnesses

categorically stated that the clothes of the victim were torn. This

proved the prosecution's case. The learned Trial Court erred in

acquitting the accused. Hence, it was prayed that the present

appeal be allowed and the judgment passed by the learned Trial

Court be set aside.

9. I have heard Mr. Lokender Kutlehria, learned

Additional Advocate General for the appellant/State and Mr. Anil

Kumar God, learned counsel for the respondents/accused.

10. Mr Lokender Kutlehria, learned Additional Advocate

General for the appellant/State submitted that the learned Trial

Court erred in acquitting the accused. The prosecution witnesses

proved that the accused had given beatings to the victim and tore

her clothes. Learned Trial Court erred in relying upon the

testimony of Sudha Kaundal (DW1) to discredit the prosecution

version. Therefore, he prayed that the present appeal be allowed

and the judgment passed by the learned Trial Court be set aside.

.

11. Mr. Anil Kumar God, learned counsel for the

respondents/accused supported the judgment passed by the

learned Trial Court. He submitted that the learned Trial Court had

taken a possible view based on the evidence led before it and this

Court should not interfere with the same merely because an

alternative view is possible. The judgment of the learned Trial

Court does not suffer from any perversity and should not be

interfered with. Hence, he prayed that the present appeal be

dismissed.

12. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

13. The present appeal has been filed against the judgment

of an acquittal. It was laid down by Hon'ble Supreme Court in

Criminal Appeal No.1162 of 2011, titled Mallappa & Ors. Vs. State of

Karnataka (2024) 3 SCC 524 decided on 12.02.2024, that while

deciding an appeal against acquittal, the High Court should see

whether the evidence was properly appreciated on record or not;

second whether the finding of the Court is illegal or affected by

the error of law or fact and thirdly; whether the view taken by the

Trial Court was a possible view, which could have been taken

based on the material on record. The Court will not lightly

.

interfere with the judgment of acquittal. It was observed:

25. We may first discuss the position of law regarding the

scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty.

The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the

trial court, on appreciation of the evidence on record, finds

that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

26. No doubt, an order of acquittal is open to appeal and

there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on

record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially

when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court

thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However,

the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a

.

reasonable doubt in the case of the prosecution. Moreover,

it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action.

Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible,

it would make it practically impossible to settle the rights and liabilities in the eye of the law.

28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19] : (SCC pp.

236-37, para 13)

"13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible

one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of

T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by

the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing

the acquittal has been dealt with by this Court, thus :

(SCC p. 643, para 9) '9. ... We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside.

The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view

.

was possible, that was not a ground sound enough

to set aside an order of acquittal.'"

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme

Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

"7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with r the trial court in acquitting the accused must

be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan

Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166

: (2021) 1 SCC (Cri) 395] ).

7.2. With an order of acquittal by the trial court,

the normal presumption of innocence in a criminal matter gets reinforced

(see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."

14. The present case has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

15. Balbir Singh (PW2) stated that the Panchayat had

visited the spot for inspection. He, the accused and the

.

complainant were present on the spot. The accused and the

complainant had a scuffle. Panchayat separated them. He handed

over his towel to the complainant to cover herself. Phulan Devi

handed over her chadar to the victim. He identified the shirt of the

victim. He did not know who had torn the clothes of the victim.

16. This witness was not cross-examined by the

prosecution, which means that his testimony is not disputed by

the prosecution. His statement does not establish that the accused

had torn the clothes of the complainant, but only that there was a

scuffle. His statement does not show who was the assailant and

who was the victim. He clarified in the cross-examination that

when Parveen Kumar asked Rachhpal Singh as to where he had

blocked the passage, it led to an altercation. The complainant got

infuriated and started going towards the spot. The other women

caught hold of her. He could not say that the clothes were torn

while stopping the victim. Therefore, the learned Trial Court had

rightly held that his testimony did not establish that the accused

had torn the clothes of the victim.

17. Ram Lok (PW3) was the Up-Pradhan of the Gram

Panchayat. He stated that Panchayat visited the spot for

.

inspection. Parveen Kumar and Rachhpal Singh argued. The

clothes of the victim were torn in the scuffle. The clothes of both

the parties namely, the complainant and the wife of the accused

were torn. He was permitted to be cross-examined. He denied the

previous statement made by him. He stated in his cross-

examination that Parveen Kumar and Rachhpal Singh were

standing towards the one side of the road, whereas the women

were standing towards the other side of the road. He admitted that

Parveen Kumar and Rachhpal Singh had an argument during the

inspection and the complainant tried to go towards them. Women

tried to catch hold of the complainant and her clothes were torn in

the process. The testimony of this witness does not support the

prosecution's version that the accused had torn the victim's

clothes.

18. Kuldeep Singh (PW7) stated that Panchayat had visited

the spot on 12.06.2001. Parveen Kumar tore the clothes of the

complainant. They handed over his towel to the victim to cover

herself. The wife and sister of Parveen Kumar also gave beatings

to the victim. He stated in his cross-examination that he is

running a shop at Nadaun at a distance of about 16-17 Km. He had

taken a leave on that day. He denied that he had made a statement

to the police that he was not present on the spot on the date of the

.

incident. He denied that he had made a false statement and he was

not present on the spot.

19. ASI Ravindra Devi (PW9) admitted in her cross-

examination that Kalawati, Kuldeep, Phulan Devi, Bhagu Devi and

Om Devi were not cited by the prosecution as witnesses, because

these persons did not make any statement to her.

20. The statement of Ravindra Devi (PW9) shows that this

witness(PW7) had not made any statement before the police when

the police were investigating the matter. He has not given any

reason for his silence and the failure to make the statement

immediately after the incident to the police, who were

investigating the matter will make it difficult to rely upon his

testimony. It was held in Ravulappalli Kondaiah v. State of A.P.,

(1975) 3 SCC 752: 1975 SCC (Cri) 213 that where the witness has not

told the facts to the investigating officer, his testimony in the

Court cannot be relied upon. It was observed:

"28. DW 2 is an attesting witness of the inquest report. In cross-examination, after some prevarication, he stated that he did not tell the Investigating Officer about these facts which he had for the first time disclosed in Court. While admitting his signature on the inquest report, the witness said that he had signed a blank form. This was

contradicted by PW 10 who stated that he had signed the report, Exh. P-16, after it had been entirely written out in his presence. The Sessions Judge also did not believe the

.

version of DW 2, that his signature was obtained on a blank

paper by the Investigating Officer. In spite of this glaring falsehood going to the root of the matter, it is surprising that the Sessions Judge accepted his evidence to hold that

the plea of alibi was "probably true". The High Court's assessment that the statement of this witness was "a bare- faced lie" was thus not unjustified.

21. Kalan Devi (PW8) stated that Panchayat had visited the

spot for inspection on 12.06.2001 at about 05:00 PM. Parveen

Kumar tore the clothes of the complainant. His wife and sister

also helped him. Birbal handed over his towel and Phulan Devi

gave her dupatta to the informant to cover herself. She stated in

her cross-examination that the complainant's husband and

Parveen Kumar are her nephews. She admitted that a portion of

the courtyard of Parveen Kumar was merged into her courtyard

during the settlement. She admitted that she was not on talking

terms with Parveen Kumar. She admitted that Parveen Kumar is

discharging the water towards their land, which is led to the

dispute.

22. The cross-examination of this witness shows that she

has strained relations with the accused Parveen Kumar. There was

a dispute over the land and discharge of water. She had also not

made any statement to the police when the police were

investigating the matter. The failure to make the statement at the

earliest point of time and the enmity with the accused will make it

.

difficult to place reliance on her testimony.

23. Phulan Devi (PW6) stated that Panchayat had visited

the spot. There was a scuffle between Parveen Kumar and

Rachhpal Singh. When the complainant tried to intervene, the

wife and the sister of the accused also intervened. They caught

hold of the complainant and Parveen Kumar tore her clothes. She

handed over her dupatta to the complainant to cover herself. She

admitted in her cross-examination that the complainant's

husband is her real nephew. She admitted that she was unable to

walk properly. It had become dark when she left the home. She

reached the spot after one hour and it was quite dark. The

Members of the Panchayat and villagers were going to their

homes. When the complainant met her on the way, she had

covered herself.

24. This witness also did not make any statement to the

police during the investigation. She is aunt of complainant's

husband. She specifically stated that when she reached the spot,

the Members of the Panchayat and villagers were going to their

homes and the victim had covered herself. These circumstances

make it difficult to hold that she was an eyewitness and witnessed

the incident.

.

25. The complainant stated that the accused Parveen

Kumar had blocked the path. The Panchayat visited the spot for

inspection. The accused Parveen Kumar caught hold of her and

tore her clothes. His wife and sister gave her beatings. Birbal

handed over his towel and Phulan Devi handed over the dupatta to

her to cover herself.

26. The victim's husband Rachhpal Singh (PW5) stated

that the Panchayat had visited the spot for inspection. The

accused caught hold of the complainant. His wife and sister gave

her beatings. The complainant's shirt was torn and Phulan Devi

handed over her dupatta to the complainant to cover herself. He

identified the shirt which was worn by the complainant at the

time of the incident. He stated in his cross-examination that he

was on duty on the date of the incident. He reached the spot

within five minutes from the office. The Panchayat had already

arrived before his arrival.

27. The victim and her husband stated that the accused

had blocked the path. ASI Ravindra Devi (PW9) stated that when

she visited the spot, there was no obstruction in the path. This

statement falsifies the prosecution's version that the accused had

blocked the path, which caused the dispute between the parties.

.

28. Sudha Kaundal (DW1) stated that she was Pradhan of

the Gram Panchayat. The Panchayat reached the spot for

inspection. There was no obstruction on the spot. Parveen Kumar

and the complainant's husband were standing towards one side of

the road and the women were standing on the other side. The

complainant started going towards her husband. The other

women stopped her and the clothes of the victim were torn in the

incident. She stated in her cross-examination that when they

reached the spot, the victim told her that the accused had

obstructed the path. She denied that the accused had caught hold

of the victim and torn her clothes.

29. She was Pradhan and nothing was shown in her cross-

examination that she had any interest to depose against the

complainant or in favour of the accused. She was an independent

person and was called to resolve the dispute between the parties.

This shows that the parties considered her neutral and capable of

resolving the discrepancies. Her statement falsifies the

prosecution's version that the accused had torn the clothes of the

victim.

30. There is no other evidence to establish the prosecution

case.

.

31. The evidence on record leads to an interference that

the complainant was stopped when she tried to go towards her

husband and her clothes were torn in that process. The view taken

by the learned Trial Court was a reasonable view, which could

have been taken based on the evidence recorded by the learned

Trial Court and no interference is required with the same while

exercising the jurisdiction in an appeal against the acquittal.

32. Consequently, the present appeal fails and the same is

dismissed, so also the pending miscellaneous applications, if any.

33. The records of the learned Courts below be returned

forthwith.

(Rakesh Kainthla) Judge

05th August,2024 (Shamsh Tabrez)