State Of Himachal Pradesh vs Kashmir Singh on 16 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA

Cr.Appeal No. 50 of 2016

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Date of Decision: September 16, 2017

State of Himachal Pradesh …Appellant.

Versus

Kashmir Singh ..Respondent.
Coram:

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 No.
For the Appellant:

r Mr. R.S. Verma, Additional Advocate

General.

For the Respondent: Mr.Vikas Rathore, Advocate, Legal
Aid Counsel, for the respondent.

Sanjay Karol, Acting Chief Justice (oral).

On 28.02.2014, prosecutrix (PW.13), lodged a

complaint at Police Station, Balh, District Mandi, H.P., on

the basis of which FIR No.71/2014, dated 28.02.2014

(Ex.PW.17/A), under the provisions of Sections 376 and

506 of the Indian Penal Code, was registered against

accused Kashmir Singh.

1

Whether reporters of the local papers may be allowed to see the judgment?

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2. In short, prosecutrix alleged that on

24.07.2005, she was married to Ravinder Singh son of

present accused Kashmir Singh. Her husband was

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gainfully employed and during the year 2011 to January,

2013, when he was away to Saudi Arabia, her father-in-

law, the present accused, tried to molest and outrage her

modesty. Though she complained such conduct to her

mother-in-law, but was asked to keep mum. On the

return of her husband, she brought the matter to his

notice. Unfortunately on 26.01.2014, her husband

expired. Prior thereto, on 21.01.2014, accused gave him

beatings. Perhaps it is this, which prompted him to

commit suicide. Soon after death of her husband, on

28.02.2014 at about 6.30 a.m., accused sexually

assaulted her in the store room of the house. She

narrated the incident to her brother, who took her to

Mandi and after consulting an Advocate, lodged the

complaint.

3. Inspector Shamsher Singh (PW.19)

commenced investigation. Prosecutrix was got medically

examined; her statement under Section 164 of the

Cr.P.C. (Ex.PW.13/B) recorded; accused arrested and

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medically examined; and evidence, scientific in nature,

taken on record. With the completion of investigation,

which prima facie revealed complicity of the accused in

.

the alleged crime, Challan was presented in the Court for

trial.

4. Record reveals that accused was charged for

having committed offences punishable under the

provisions of Sections 376 and 506 IPC, to which he did

not plead guilty and claimed trial.

5. r In order to establish its case, prosecution

examined as many as 21 witnesses and statement of the

accused under Section 313 Cr.P.C., was also recorded, in

which he took defence of innocence and false

implication. In his defence, accused examined his mother

Hima devi (DW.1).

6. Finding the testimony of the prosecutrix not to

be inspiring in confidence, trial Court acquitted the

accused on both counts, in terms of judgment dated

16.05.2015, passed by Additional Sessions Judge (1)

Mandi, District Mandi, H.P., in Sessions Trial No. 13 of

2014, titled as State of H.P. Versus Kashmir Singh. It is

the correctness of the said judgment, which is subject

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matter of challenge in the present appeal, so filed by the

State under the provisions of Section 378 of the Code of

Criminal Procedure, 1973.

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7. It is a settled principle of law that even though

acquittal confers a right of innocence upon the accused,

but then the Appellate Court has wide powers. It can

examine and re-appreciate the record in its entirety and

reverse such of those findings, which are perverse,

erroneous and illegal.

8. The question, which needs to be considered, is

as to whether findings returned by the trial Court are

based on correct and complete appreciation of material

placed on record or not?

9. In the instant case, certain facts are not in

dispute: (a) that Prosecutrix is a major; (b) was married

to son of the accused; (c) for two years i.e. from January,

2011 to January, 2013, her husband was working abroad;

and (d) on 26.01.2014 her husband died.

10. Prosecution case primarily rests upon the

testimonies of Vidya Devi (PW.1), Pradeep Kumar (PW.2)

and the prosecutrix (PW.13).

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11. To begin with, we may observe that

independent witnesses i.e. Vidya Devi and Pradeep

Kumar have not supported the prosecution at all.

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Allegedly prosecutrix had narrated the incident to these

persons and/or witnessed the same. Now these

witnesses have turned hostile. When cross-examined by

the Public Prosecutor, we do not find them to have

corroborated the version of the prosecutrix or stated the

prosecution case. We see no reason for disbelieving their

testimonies. r

12. But then, it is not the law that version of the

prosecutrix needs corroboration. If her version, fully

inspiring in confidence, establishes the prosecution case,

accused can still be convicted solely on her statement.

13. Let us now examine the testimony of

prosecutrix. In Court, she states that for two years i.e.

2011 to January, 2013, when her husband was abroad,

her father-in-law, i.e. present accused, tried to develop

illicit relationship with her, as also molest her. This was

so done on several occasions. She did disclose such fact

to her mother-in-law as also grand mother-in-law, but

was advised to live separately from the accused and not

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disclose the incident to anyone. On 21.01.2014, accused

quarreled with her husband and also tore his clothes, as

a result of which, her husband started consuming liquor

.

and remained in a state of intoxication. Consequently on

26.01.2014, her husband took quarrel with her as a result

of which she informed her brother, who advised her not

to inform the police. Her husband also abused her father

and brother. On 26.01.2014 itself, accused made hue

and cry that his son had committed suicide. She admits

that a case against her father and brother was registered

under Section 306 IPC. She does state that her

statement was not recorded by the police. She further

goes on to state that on 26.01.2014, accused tried to

disconnect the electricity of her room. On 28.02.2014, at

about 6.30 a.m., while she was in kitchen, accused came

and asked her to bring his bag, so kept in the store.

When she went to bring the same, accused chased her

and after bolting the door from inside, sexually assaulted

her and all this, despite her resistance. Threats to her life

were also extended by him. Soon thereafter, she

informed her brother about the incident, which led to the

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filing of the case. She also states that she was medically

examined at Zonal Hospital, Mandi.

14. Thus far so good, however even when we

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examine the cross-examination part of her testimony, we

find the witness to have contradicted herself on several

counts. Such contradictions are not minor, but glaring,

rendering her testimony to be totally unreliable and the

witness unworthy of credence. In fact to us, her version

appears to be totally improbable and not true, if not

false. r

15. We find that in Court, she has made several

improvements from her previous statement, so recorded

by the police, with which she was confronted. No doubt,

prosecutrix is a house-lady, but then she had access to

her relatives. In fact, she admits that she had

telephonically informed her father and brother about the

quarrel, which her husband had, had with her.

Significantly, at that point in time, she never narrated the

incident to anyone. Her parents are living just at a

distance of 6-7 kms. Why is it that for two years when

her husband was away, she did not make any grievance

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about the alleged misconduct and overt acts of the

accused to them?

16. Further, one notices that the incident in

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question came to be reported to the police immediately

after registration of the case against her father and

brother. This was in relation to the death of her husband.

Police found her husband to have committed suicide only

on account of overt acts of her father and brother,

leading to registration of a case against them, under

Section 306 IPC. Her version that she resisted the acts

does not appear to be true. In fact, it stands materially

contradicted as in her cross-examination, she admits that

“I had not cried for help” and further “I had not disclosed

to my mother about the incident”. It has also come on

record that for last seven years she had been living

separately from her in-laws. Her relationship with her in-

laws was definitely not cordial. She admits that “It is

correct that my mother, my maternal uncle Bhim Singh,

and my aunt Saravmangla. And my Mousi Maya Devi,

mother in law of my elder sister came to our house and

requested the accused to keep me with them in a joint

family, 4-5 days prior to this incidence. It is incorrect

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that the wife of my brother remained with me up to

28.2.2014″. Significantly no grievance of any overt acts

was made at that time. Why would her family members

.

request the accused to keep the prosecutrix, if he was at

fault.

17. It has also come in her version that after

telephonically narrating the incident to her brother, she

started walking towards her parental house and met him

on the way. On way she admits not to have disclosed the

incident to anyone, more so to the Pradhan and members

of the Panchayat of Magarpadharu or Baggi. She admits

that Police Station, Balh, was on way to Mandi. She

explains of not reporting the matter to the police by

stating that relatives of the accused were posted there.

But then, this version to our mind is not proven on

record. It is vague and unspecific. Crucially she admits in

her cross-examination that her husband committed

suicide as a result of beatings given by her father and

brother. Now this totally belies her original version of the

accused having beaten her husband resulting into his

becoming alcoholic.

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18. It is in this backdrop, we find version of the

prosecutrix to be totally uninspiring in confidence.

Contradictions and improbabilities are galore rendering

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her not to be a reliable witness. To us, there is no doubt

about such fact.

19. It be also observed that father and brother of

the prosecutrix have not been examined as prosecution

witnesses. In fact, when we peruse the testimony of

Leela Devi (PW.14), mother of the prosecutrix, we find

her to have contradicted the version of her daughter.

According to the mother, she had been informed by her

daughter about the overt acts of the accused, which fact

stands categorically denied by the latter.

20. We may also observe that even by way of

corroborative evidence, prosecution has not been able to

establish the version of the prosecutrix. Dr.Anjali (PW.6),

who proven MLC (Ex.PW.6/B), does not categorically

state that immediately prior to medical examination,

prosecutrix was subjected to sexual assault.

21. Court below does not find prosecution to have

proven its case, beyond reasonable doubt, to the effect

that on 28.02.2014 at about 6.30 a.m., at place

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Mashyathan (Balh) accused had sexual intercourse with

the prosecutrix and criminally intimidated her to kill her,

by leading clear, cogent, convincing piece of evidence.

.

22. The Court below, in our considered view, has

correctly and completely appreciated the evidence so

placed on record by the prosecution. It cannot be said

that judgment of the trial Court is perverse, illegal,

erroneous or based on incorrect and incomplete

appreciation of material on record resulting into

miscarriage of justice.

23. The accused person has had the advantage of

having been acquitted by the Court below. Keeping in

view the ratio of law laid down by the Apex Court in

Prandas Vs. The State, AIR 1954 SC 36, since it cannot be

said that trial Court has not correctly appreciated the

evidence on record or that acquittal of the accused has

resulted into travesty of justice, no interference is

warranted in the instant case.

24. For all the aforesaid reasons, present appeal,

being devoid of merit, is dismissed, so also the pending

application(s), if any. Bail bonds furnished by the accused

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are discharged. Record of the trial Court be immediately

sent back.

.

(Sanjay Karol),

Acting Chief Justice.

September 16, 2017 (Sandeep Sharma),
(Purohit) Judge.

r to

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