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Chandermani vs State Of H.P on 31 May, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. Appeal No. 294 of 2015.

Reserved on: 17th May, 2018.

.

Date of Decision: 31st May, 2018.

Chandermani …..Appellant.

Versus

State of H.P. ….Respondent.

Coram r to

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?

For the Appellant: Mr. Anup Chitkara and

Ms. Sheetal Vyas, Advocates.

For the Respondent(s):Mr. Hemant Vaid, Addl. Advocate

General with M/s Vikrant
Chandel and Yudhbir Singh

Thakur, Deputy Advocate
General for the respondent-

State.

_

Per Sureshwar Thakur, Judge.

The accused/appellant, is, aggrieved by the

verdict of conviction and consequent sentence, imposed

upon him, for his committing an offence punishable under

Section 376(2)(f) of the IPC, and, also vis-a-vis the

apposite conviction, and, the consequent sentence,

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2

imposed upon him, for his committing an offence under

Section 342 of the IPC.

2. The facts relevant to decide the instant case

.

are that the marriage of the prosecutrix was solemnized

about five years back, but no child was born to her. The

family members of the prosecutrix thereafter took the

shelter of local deity Bala Kameshwar for treatment to

procure child. On 2.5.2013, the local deity Bala

Kameshwar had come in the village of the prosecutrix at

village Katwandi in connection with some birth day. The

father-in-law of the prosecutrix had also gone there. The

accused was Priest-cum-Spokes person of deity (Gur) and

he had asked the prosecutrix to come to his house on

13.5.2013 for taking the holly water. On 13.5.2013, the

prosecutrix along with her mother-in-law Smt. Teji Devi had

gone to the house of the accused at about 10 a.m. The

accused asked the mother-in-law f the prosecutrix to go

back from the spot and told that the prosecutrix shall be

sent after five days. The accused told the prosecutrix that

he would start the treatment after 10 p.m. The accused

took the prosecutrix in his kitchen and put two circles of

flour on the floor and put one glass of water on the same.

Some rice and flower put inside the glass. The accused

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3

lifted the shirt of the prosecutrix and put three lines on the

stomach of the prosecutrix with Bhabhuti (holly ash). He

has also told that there was Devta in the private part of

.

the prosecutrix and accused asked the prosecutrix to take

off her salwar. When the prosecutrix refused, the accused

forcibly after threatening opened the salwar of the

prosecutrix. The accused asked the prosecutrix to turn

around. The accused put his hand from behind on the

waist of the prosecutrix and picked her up. The accused

immediately opened her pyzama and tried to come on the

prosecutrix. When the accused tried to come on the

prosecutrix, the prosecutrix kicked him and came to the

side of the accused. Thereafter, she went away from the

kitchen and went to another room. The prosecutrix bolted

her room from inside. The accused knocked at the door of

the prosecutrix, but she did not open. The prosecutrix

made telephone call to different persons. At about 8.30

a.m. on next day, the mother-in-law and father-in-law of

the prosecutrix and other persons came there and took the

prosecutrix out of the room. The prosecutrix thereafter

went to the police station and gave application to the

police on the basis of which FIR was registered. The police

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4

thereafter carried and concluded all the investigation(s)

formalities.

3. On conclusion of the investigation, into the

.

offences, allegedly committed by the accused, a report,

under Section 173 of the Code of Criminal Procedure, was

prepared, and, filed before the learned trial Court.

4. The accused/appellant herein stood charged, by

the learned trial Court, for, his committing offences,

punishable under Section 342, and, under Section 376 (2)

(f) of the IPC. In proof of the prosecution case, the

prosecution examined 15 witnesses. On conclusion of

recording, of, the prosecution evidence, the statement of

the accused, under, Section 313 of the Code of Criminal

Procedure, was, recorded by the learned trial Court,

wherein, the accused claimed innocence, and, pleaded

false implication in the case.

5. On an appraisal of the evidence on record, the

learned trial Court, returned findings of conviction upon

the accused/ appellant herein, for his hence committing

the aforesaid offences.

6. The appellant herein/accused, stand aggrieved,

by the findings of conviction, recorded, by the learned trial

Court. The learned counsel appearing for the appellant

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5

herein/accused, has concertedly and vigorously

contended, qua the findings of conviction, recorded by the

learned trial Court, standing not, based on a proper

.

appreciation of the evidence on record, rather, theirs

standing sequelled by gross mis-appreciation, by it, of the

material on record. Hence, he contends qua the findings

of conviction warranting reversal by this Court, in the

exercise of its appellate jurisdiction, and, theirs being

replaced by findings of acquittal.

7. On the other hand, the learned Addl. Advocate

General has with considerable force and vigour,

contended qua the findings of conviction, recorded, by the

learned trial Court, rather standing based, on a mature

and balanced appreciation, by it, of the evidence on

record, and, theirs not necessitating any interference,

rather theirs meriting vindication.

8. This Court with the able assistance of the

learned counsel on either side, has, with studied care and

incision, evaluated the entire evidence on record.

9. The prime evidence, espoused, by the

prosecution, to unflinchingly nail the charge, against, the

accused, (i) is comprised in the testification, rendered, by

the prosecutrix, who, stepped into the witness box as PW-

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6

2. (ii) She in her testification, has, rendered a version,

bearing absolute consonance, with, the echoings made by

her, in, her application, comprised in Ex.PW2/A, application

.

whereof stands addressed, to, the Incharge, Police Station,

Gohar, in sequel, whereto, the apposite FIR, borne, in

Ex.PW15/A, hence, was registered. She has also in her

testification, (iii) rendered, echoings in concurrence, with

the ones borne in Ex.PW2/D, exhibit whereof comprises

her statement, recorded, under Section 164 of the Cr.P.C.,

before the learned Judicial Magistrate, Chachiot at Gohar.

She has also made a disclosure qua Ex.PW2/D being

volitionally, made by her. However, the learned counsel

appearing, for the appellant/accused, has, contended with

vigour, (iv) that her statement, does not carry any iota, of,

creditworthiness nor is amenable, for, any credence being

imputed thereto, (v) AND for succoring the aforesaid

argument(s), he has drawn the attention of this Court, to,

certain testified improvements and contradictions, made

by her, vis-a-vis her statement, borne in Ex.PW2/D. The

apposite testified improvements, contradictions, and,

embellishments vis-a-vis Ex.PW2/D, (vi) are, contended to

be highlighted, by the prosecutrix in her cross-

examination, making, an admission qua hers omitting, to,

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7

in Ex.PW2/A, hence, make any articulation (a) qua after

the accused lifting her from behind, his, ensuring qua his

penis making contact with her private part; (b) of the

.

prosecutrix, omitting, to in Ex.PW2/A, hence, record any

bespeaking, of, the accused applying, “bhabhuti”, on her

private part. The efficacy, of the aforesaid submission

addressed, before this court, by the learned counsel

appearing, for the appellant for hence, his, thereupon

assaying to tear apart the, creditworthiness, of the

testification rendered qua the occurrence, by the

prosecutrix, is contrarily rather effaced (c) by the factum

of the prosecutrix subsequent thereto, under Ex.PW2/D,

exhibit whereof, comprises, her statement recorded under

Section 164 of the Cr.P.C., before, the learned Magistrate

concerned, rather making the aforesaid echoings.

Conspicuously, even if, the prosecution case, is, solitarily

rested upon ex.PW2/A, and, even if subsequent thereto,

hence, testified improvements, are, made by the

prosecutrix qua the genesis, of, the occurrence, borne, in

Ex.PW2/D, especially, qua the factum (i) of the accused

applying, “Bhabhuti”, on her private part; (ii) his making

contact of his private part, with her private part, (iii) would

yet not render the prosecution case, to founder, for the

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8

reasons (a) of the prosecutrix in her testification,

embodied, in her examination-in-chief, rather making a

candid unequivocal disclosure, of, Ex.PW2/D being

.

volitionally recorded, (b) AND, testification whereof, rather

remaining uneroded, given the learned defence counsel

while subjecting her, to cross-examination, not making any

endeavour, to, hence rip apart, its veracity. Furthermore,

upon a reading, of, the cross-examination of the

prosecutrix, by the learned defence counsel, the latter yet,

during, course thereof, omitted to, confront her with the

afore referred purportedly improved articulations, vis-a-vis,

the ones borne in Ex.PW2/A, (c) thereupon, it being

ensuably firmly inferable, qua the defence, acquiescing

qua the occurrence spelt out by the prosecutrix, in

Ex.PW2/D, hence, carrying an aura of truth, besides

veracity, (d) contrarily hence the version, borne therein

not being ingrained with any vice of falsehood, dehors, any

improvements or embellishments, occurring therein vis-a-

vis the ones borne in Ex.PW2/A, (e) nor hence it can be

concluded, of the testification, rendered by prosecutrix,

AND, bearing concurrence with the recitals, borne in

ex.PW2/D, being amenable for, its, being discarded, given

it being purportedly imbued, with, any stench of any

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9

prevarication or with any stain, of, improvements or

embellishments, vis-a-vis, the versions, qua the

occurrence, spelt out in Ex.PW2/A. In sequel thereto, this

.

Court is constrained, to, impute sanctity to the version qua

the occurrence, as, testified by the prosecutrix.

10. Be that as it may, the learned counsel,

appearing for the accused, has contended with vigour,

that the statement of the prosecutrix, recorded, under

Section 164 of the Cr.P.C., (i) whereupon much

dependence, is laid, by this Court, for imputing

creditworthiness, vis-a-vis, the testification, rendered, by

the prosecutrix, (ii) being not construable to be a

substantive piece of evidence, and, hence he contends

that any reliance thereon, is inapt. In making the

aforesaid submission, the learned counsel appearing for

the appellant, places reliance, upon a verdict rendered, by

the Hon’ble Apex Court, in a case titled as George vs.

State of Kerala, 1998(4) SCC 605, the relevant

paragraph No.36 whereof is extracted hereinafter:-

“36. We may now turn to the evidence of P.W.50,

detailed earlier. From the judgment of the trial Court

we notice that the substantial parts of its comments,

(quoted earlier) are based on his statement recorded

under Section 164 Cr.P.C. and not his evidence in

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10

Court. The said statement was treated as substantive

evidence; as would be evident from the following,

amongst other observations made by the learned

trial Court:-

.

“If Ext. P.42 (the statement recorded under
Section 164 Cr.P.C.) is found to be a genuine
statement it can be used as an important piece
of evidence to connect the accused with the

crime”.

In making the above and similar comments the trial
Court again ignored a fundamental rule of criminal
jurisprudence that a statement of a witness recorded

under Section 164 Cr.P.C. cannot be used as
substantive evidence and can be used only for the
purpose of contradicting or corroborating him.
Instead of appreciating the evidence of P.W.50 from
that perspective the trial Court confined its attention

mainly to his statement so recorded and discredited

him.”

However, in making the aforesaid submission, the learned

counsel, appearing for the appellant, has hence committed

an apparent fallacy, arising, from his misreading, the

truest signification, of the hereinabove extracted, relevant

paragraph, of George’s case (supra). The reason, for

making, the aforesaid conclusion, arises, from the factum,

(i) given, even if the statement recorded under Section

164 of the Cr.P.C., by the prosecutrix, before, the learned

Magistrate concerned, is unamenable, for its being used,

as a substantive evidence, yet with apt para thereof,

further mandating therein, of its being usable, for

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11

corroborating or confronting, the maker thereof, hence

renders it usable, by the learned defence counsel, for

confronting therewith hence the prosecutrix, for,

.

thereafter her veracity, being fathomed. Since, the

prosecutrix, in her testification, embodied, in her

examination-in-chief, had made a clear echoing, qua her

statement borne in ex.PW2/D, being rendered volitionally,

before, the learned Magistrate, and, also hence thereupon,

has, meted corroboration, vis-a-vis, her testification,

wherein she ascribes, vis-a-vis, the accused, incriminatory

roles, qua (i) qua after the accused lifting her from behind,

his ensuring qua his private part making contact, with, her

private part; (ii) of the accused accused applying

“bhabhuti” on her private part, (iii) testifications whereof,

though, purportedly improving upon, the initial version vis-

a-vis occurrence, borne, in Ex.PW2/A, yet, with this Court,

for the reasons aforestated, discounting, all effects

thereof, (iv) thereupon, it was imperative, for, the learned

defence counsel, to also confront her, with her statement

borne in Ex.PW2/D, for hence, unveiling, from her, the

apposite contradictions, occurring therein vis-a-vis her

testification rendered on oath, especially qua the aforesaid

facets, (v) also for hence eliciting, from her, the factum of

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12

hers, in making, gross improvements besides

embellishments, vis-a-vis, her initial statement qua the

occurrence, borne in Ex.PW2/A, thereupon, her testification

.

being belitted qua its solemnity. However, the aforesaid

apt permissible user, of Ex.PW2/D, by the defence counsel,

for hence contradicting, maker thereof, contradictions

whereof, would emerge upon hers being confronted

therewith, by the learned defence counsel, during, the

course of his subjecting her to cross-examination,

apparently remained unavailed, (vi) whereupon, in, the

learned defence counsel, rather omitting to confront her

with her statement, borne in Ex.PW2/D also concomitantly,

his, omitting to unearth therefrom, qua its carrying, a

version ridden with rife improvements or contradictions,

vis-a-vis, the one embodied in Ex.PW2/A, (vii) thereupon,

concomitantly, AND, as a natural corollary, the omissions

aforesaid of the learned defence counsel, constrain an

inference, from this Court of hence, the learned defence

counsel, acquiescing to the factum of the maker, of

Ex.PW2/D, rendering the apt encapsulated version borne

therein, besides qua hers hence rendering it volitionally,

and, also his acquiescing qua it carrying therein, a truthful

version qua the occurrence.

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11. Be that as it may, even if, the Hon’ble Andhra

Pradesh High Court, in a case titled, as Guruvindapalli

Anna Rao v. State of A.P., reported in 2003 CRI. L. J.

.

3253, the relevant paragraph 7, whereof stands extracted

hereinafter:-

“7. We would like to put one more discrepancy on

record, viz., that while recording evidence, the learned II

Additional Sessions Judge had summoned the I

Additional Munsif Magistrate, Tenali (PW.10) to prove

the statement of P.W.1 recorded by him under Section

164 Cr.P.C. This Court has already ruled if any Magistrate

records the statement of a witness under Section 164

Cr.P.C, it is not necessary for the Sessions Judges to

summon that Magistrate to prove the contents of the

statement recorded by him. This Court has already ruled

that when a Magistrate, discharging his official functions

as such, records the statement of any witness under

Section 164 Cr.P.C, such statement is a ‘public document’

and it does not require any formal proof. Moreover, it is

seen that the learned II Additional Sessions Judge,

Guntur, while recording the evidence of the I Additional

Munsif Magistrate, Tenali (PW.10), has exhibited the

statement of P.W.1 recorded by the Magistrate as Ex.P.10.

As a matter of fact, such statement cannot be treated as a

substantive piece of evidence. Such statement can be

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14

made use of by the prosecution for the purpose of

corroboration, or by the defence for contradiction, under

Section 145 of the Evidence Act. Therefore, the II

Additional Sessions Judge, Guntur, is directed to note the

.

provisions contained in Section 145 of the Evidence Act.

Even if a statement is recorded by a Magistrate, it is not a

substantive piece of evidence, but it is only a previous

statement.”

(i) has propounded therein the trite exposition of law, of

statement of a witness, recorded under Section 164, of the

Cr.P.C., being construable to a public document, and, it not

requiring any formal proof, besides its mandating therein,

of, the summoning of the Magistrate, being not

imperative, for proving hence, contents thereof, (ii) yet

even if, the learned defence counsel has made the

aforesaid omission, and, even if, for hence, efficacious

proof being adduced qua validity of Ex.PW2/D, on all

fronts, did not enjoin, the summoning, of the Magistrate

concerned, (iii) nonetheless, when, it was yet open for the

learned defence counsel, to, at an appropriate stage, by

casting an application, under Section 311 of the Cr.P.C.,

hence endeavour, to, seek pronouncement, of an

affirmative order(s) thereon, especially, for summoning the

Magistrate concerned, (iv) AND, upon, whose hence

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15

stepping into the witness box, he was hence enabled, to

rip apart, the tenacity of the prosecutrix’s deposition, qua

hers, making, it volitionally, also, was hence, rather

.

enabled, to, impinge the validity, of, the certificate

appended thereunderneath, by the Magistrate concerned,

(v) on score, of, it being made mechanically, AND,

cursorily, without, his ensuring, qua, all the apt recitals

occurring therein, being a sequel of her free volition,

besides being bereft of any iota oF any stain, of, hence

maker thereof, being tutored or hers making it, under, the

behest or guidance, of, certain vested interests. Since, the

aforesaid endeavour, stood unassayed, by the learned

defence counsel, thereupon, this Court, with reinforced

vigour, hence, concludes, of, the defence accepting, the

factum (a) of truthfulness of the certificate, appended, by

the Magistrate, underneath, the statement recorded

before him, by the prosecutrix; (b) of hence the defence

acquiescing qua all the recitals borne therein, hence

carrying a vital aura of truth, besides, hence the

prosecution, on anvil thereof, rather proving the charge

against the accused.

12. The learned counsel, appearing, for the

accused/appellant, has yet proceeded, to make a

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16

contention before this Court (i) that the genesis of the

occurrence, is contrived besides invented, especially when

her husband, who testified as PW-3, renders an echoing, of

.

his, on 13.05.2013 receiving a telephonic call, from, his

wife, after 10 p.m., whereat, she communicated to him,

the occurrence, besides when the prosecutrix in her

deposition, comprised in her cross-examination, renders

an echoing, of hers, also from her cell phone, making, a

call at Police Station, Gohar, hence, the police officials, of

Police Station, Gohar, were, enjoined, to, with

promptitude , hence, enter a rapat against the accused,

(ii) thereupon, he contends that omissions thereof, besides

rather, with, the prosecutrix, on the day subsequent, to

the occurrence, making, an application vis-a-vis the

occurrence, comprised in Ex.PW2/A, to, the Incharge Police

Station, Gohar, (iii) also hence constrain, an inference, of

the version comprised, in Ex.PW2/A, rather being contrived

besides invented. However, the efficacy, of the aforesaid

submission, is withered by (a) PW-11 in his deposition,

borne in his examination-in-chief, making, a clear echoing,

of his, on 13.5.2013, hence, receiving a phone call, on the

landline telephone, of the Police Station, and, his also

further testifying, qua his inability to hear the voice, from,

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17

the other side. The aforesaid deposition of PW-11, cannot,

be construed to be incredible, hence, when he clearly

deposed qua inaudibility of voice of the maker of the cell

.

phone call, on the landline telephone number, of, the

police station concerned, thereupon, hence his being

concomitnatly disabled to record a rapat, (b) thereupon, it

cannot be concluded that the version qua the occurrence

comprised, in Ex.PW2/A, and, Ex.PW2/D, being either

contrived or invented.

13. Lastly but not unimportantly, an immense

vigour, vis-a-vis the testification qua the occurrence

rendered by the prosecutrix, is acquired, from her

testification, qua hers, belabouring the accused with kick

blows, for, hence repulsing his perpetrating an assault

upon her, (i) the aforesaid testification rendered by PW-2,

is proven by PW-1, given his during the course, of, his

examination-in-chief, proving the apt MLC, prepared, by

him, qua the accused, as, borne in Ex.PW1/B also his

testifying, of, upon his examining, the accused, his

noticing (a) minor contusion on dorsal surface on right

hand, (b) and contusion on dorsal surface of left hand, (c)

and his also testifying that the probable duration, of

injuries being 8 to 9 hours, (d) consequently with the

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18

duration of the injuries being relatable, to, the timing(s) of

the occurrence, (e) and, with the injuries, divulged in

Ex.PW1/B, standing neither explained nor the learned

.

defence counsel, contesting, the apt revelations, existing,

in Ex.PW1/B, (f) thereupon, it is to be reiteratedly

concluded that the version testified, by the prosecutrix,

being rendered in consonance with Ex.PW2/A, and with

Ex.PW2/D, especially qua the factum, of, hers, hence

delivering kick blow(s), upon, the accused for thereupon

hers repulsing his penal misdemeanors, whereupon, it

acquires formidable vigour, besides also hence the

accused, obviously, makes apt acquiescence(s) therewith.

14. In summa, with the testimony, rendered by the

prosecutrix qua the occurrence, being both credible, and,

inspiring, thereupon, any testification, rendered, by other

prosecution witnesses, who, subsequent to the occurrence

arrived, at the place of occurrence, besides any purported

inter se contradictions, occurring, in their respectively

rendered versions, is both insignificant and

inconsequential nor hence, this Court is enjoined to make

any allusion thereto.

15. Nowat, the learned counsel, appearing, for the

appellant, has contended with vigour, that, an appropriate

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19

sentence, being imposable upon the accused, being vis-a-

vis, qua attempt to commit rape, and, hence he contends,

that, the conviction of the accused under Section 376(2)

.

(f), rather being unmeritworthy. However, the aforesaid

espousal, made before this Court, by the learned counsel,

for the appellant, is ummeritworthy, for the reasons (a)

with the apt amendment(s) being brought, on, the statute

book w.e.f. 3.2.2013, and, with the relevant occurrence

hence taking place subsequent thereto, thereupon, the apt

amended provisions, of, Section 376, IPC, in consonance

wherewith the accused, was, charged, being squarely

attracted hereat. However, the learned counsel, appearing

for the appellant, has contended, that, though the

amended definition of rape, as, borne in Section 375 of the

IPC, does appertain, to the occurrence, yet he contends

that clause (c) thereof, clause whereof stands extracted

hereinafter:-

” Section 375- Rape-

(a)………………………………………….

(b)……………………………………………..

(c). manipulates any part of the body of a

woman so as to cause penetration into vagina,

urethra, anus or any part of body of such

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20

woman or makes her to do so with him or any

other person; or

…..”

through carrying bespeakings, of, “manipulates any part of

.

the body of woman so as to cause penetration into

vagina”, hence the ascribeable, apt connotation, thereof

being qua it being also obviously imperative, for, the

accused, to penetrate, his penis into the vagina of the

prosecutrix. However, the aforesaid connotative

ascription(s), vis-a-vis, the apt portion of clause (c) of

Section 375 of the IPC, is unacceptable, as, the parlance

borne, by the phrase “manipulates any part of the body of

woman so as to cause penetration into vagina”, is, of the

mere touching, of, any part of the body, of the woman,

being, “of” all facilitative processes, hence, employed by a

man, on any part of the body of the woman, comprised, in

caressing(s), leading to titillation(s) , arousals, and

excitement(s), all hence being rendered rather penally

inculpable stratagem(s), employed by a man, to, hence

cause a woman, to permit him, to penetrate his penis into

her vagina, AND, all the caressings, of, private parts of a

woman, comprising, hence all causes, all whereof, carrying

an intrinsic mens rea, for, bearing the apt facilitative end,

AND, all falling within the apt domain thereof.

05/06/2018 23:02:09 :::HCHP
21

16. For the reasons which have been recorded

hereinabove, this Court holds that the learned trial Court,

has appraised the entire evidence on record in a

.

wholesome and harmonious manner, apart therefrom, the

analysis of the material, on record, by the learned trial

court, hence not suffering from any gross perversity or

absurdity of mis-appreciation and non appreciation of

germane evidence on record.

17. Consequently, the appeal is dismissed. In

sequel, the impugned judgment is affirmed and

maintained. All pending applications also stand disposed

of. Records be sent back forthwith.

(Sureshwar Thakur)
Judge

(Ajay Mohan Goel)

Judge
31st May, 2018.

(jai)

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