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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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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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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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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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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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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10Court. 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 thecrime”.
In making the above and similar comments the trial
Court again ignored a fundamental rule of criminal
jurisprudence that a statement of a witness recordedunder 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 attentionmainly 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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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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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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14made 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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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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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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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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20woman 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.
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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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