IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Revision No. 89 of 2011.
Decided on : 26/05/2017
Gian Chand …..Appellant.
Versus
State of Himachal Pradesh …..Respondent.
Coram
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1. yes.
For the Appellant: Ms. Rita Goswami, Advocate.
For the Respondent: Mr. Vivek Singh Attri, Addl. A.G.
_
Sureshwar Thakur, Judge (Oral)
The instant appeal stands directed against the impugned
judgements of conviction concurrently pronounced by both the
Courts below upon the appellant herein besides, is directed
against the sentence(s) pronounced upon him for his committing
offences punishable under Sections 451, 323 and 506 IPC
1
Whether reporters of the local papers may be allowed to see the judgment?
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.
2. The brief facts of the case are that on 7.6.2007 Smt.
Dropti Devi reported the occurrence to the police stated that she
belongs to village Khera and she is a house wife. On 7.6.2007 at
about 8.30 a.m when she was bathing her children then accused
Gian S/o Sant Ram trespassed in her courtyard caught her from
hairs and she was laid down. Thereafter, he sits on her breast
and started beating her with fist blows and kicks. He has also
threatened her that he will not leave her and after hearing the
cries Jagat Ram came to rescue her and who rescued her from
the clutches of the accused person. F.I.R Ext.PW-1/A was
registered against the accused person. During the course of
investigation I.O. prepared spot map and MLC of the injured was
obtained and after completing all codal formalities and on
conclusion of the investigation into the offences, allegedly
committed by the accused challan was prepared and filed in the
Court.
3. A charge stood put to the convict/appellant herein, by
the learned trial Court, for his committing offences punishable
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under Sections 451, 323 and 506 IPC to which he pleaded not
.
guilty and claimed trial.
4. In order to prove its case, the prosecution examined 6
witnesses. On closure of prosecution evidence, the statement of
the accused under Section 313 of the Code of Criminal
Procedure, was recorded in which he pleaded innocence and
claimed false implication. However, he did not choose to lead
any evidence in defence.
5. The accused person stands aggrieved by the findings of
conviction concurrently recorded upon him by both the courts
below, for his committing offences punishable under Sections
451, 323 and 506 IPC hence he thereafter prefers the instant
appeal. The learned counsel appearing for the accused has
concerted to vigorously contend qua the findings of conviction
recorded by the learned Courts below standing not based on a
proper appreciation of evidence on record, rather, theirs standing
sequelled by gross mis-appreciation of material on record.
Hence, she contends qua the findings of conviction warranting
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reversal by this Court, in the exercise of its appellate jurisdiction
.
and theirs being replaced by findings of acquittal.
6. On the other hand, the learned Additional Advocate
General appearing for the State has with considerable force and
vigour, contended qua the findings of conviction recorded by the
Courts below standing based on a mature and balanced
appreciation of evidence on record and theirs not necessitating
any interference rather meriting vindication.
7. 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.
8. The prosecution was under a solemn duty to beyond
reasonable doubt also to the hilt prove the version qua the
occurrence embodied in the F.I.R borne in Ext.PW-1/A, wherein
the complainant/victim has made a firm disclosure that on
7.6.2007 at about 8.30 a.m, when she was bathing her children
in the Angan of her house, then at the aforesaid place the
accused making his appearance and his proceeding to clutch her
hair. Also she has disclosed therein that he threw her on the
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floor of Varandah, whereafter he proceeded to position himself
.
on her chest. She has also disclosed therein that he thereafter
proceeded to belabour her with kicks and fist blows. The
aforesaid penal misdemeanor of the accused, sequelled hers
raising out bursts and outcries, whereupon the presence of one
Joghal Ram at the site of occurrence was aroused. She has also
echoed therein that in sequel to the aforesaid assault perpetrated
on her person by the accused, she sustained injuries on her
head, on her arm as well as certain internal injuries stood
sustained on her body. The mere fact of the aforesaid
communication(s) with respect to the occurrence being embodied
in the F.I.R would not per se constrain any conclusion, that hence
the prosecution succeeding in proving to the hilt the charge to
which the accused stood tried, contrarily, it was incumbent upon
the prosecutrix to depose in, closest tandem therewith. In other
words, each of the communications occurring in the apposite
F.I.R were enjoined to be testified by the complainant. In case
some of the material particulars occurring in the apposite F.I.R
remained omitted to be testified by the complainant, thereupon
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the version qua the occurrence embodied in the apposite F.I.R.
.
would constrain a conclusion (a) particulars occurring therein for
want of any testification in respect thereto by the prosecutrix
hence concomitantly remaining unproven. (b) The version qua
the occurrence hence being construable to be concocted also
invented, hence fostering an inference that the prosecutrix had
proceeded to falsely implicate the accused, with respect to his
purportedly exaggerated penal misdemeanor(s). Corollary
whereof, would be, that the prosecution not proving to the hilt
the charge in respect whereof the accused stood tried. In
making the aforesaid discernment(s) “while” throughout bearing
in mind the aforesaid disclosures occurring in the apposite F.I.R,
an allusion to the testification of PW-1 makes a disclosure that
the accused had, on ingressing onto her courtyard hence
proceeded to clutch her hair whereafter he proceeded to
belabour her with kick and fist blows besides proceeded to hurl
abuses upon her. Subsequent thereto she has testified that the
accused departed from the site of occurrence. She also testifies
that one Joghal Ram had made his appearance at the site of
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occurrence yet he did not intercede in the scuffle. The aforesaid
.
testification does not mete absolute corroboration qua the version
qua the occurrence embodied in the apposite F.I.R., wherein she
has made a disclosure that the accused had also positioned
himself on her chest, whereupon the occurrence of the aforesaid
fact in the F.I.R concerned, whereas its non occurrence in her
testification, foments an inference that the prosecutrix had in the
apposite F.I.R. hence unraveled an exaggerated version qua the
occurrence, wherefrom the ensuable concomitant derivative is,
that she therein had hence endeavoured concoction besides
hence concerted to falsely implicate the accused. The further
corollary thereof, is that the prosecution hence failing to prove to
the hilt, the charge, especially when it stands anvilled upon the
apposite F.I.R. Also with the prosecutrix in the apposite
complaint making a communication that on hers raising shrieks
and cries in sequel to her standing assaulted by the accused, one
Joghal Ram making his appearance at the site of occurrence and
on his rescueratory inter cession she being saved from the
assault perpetrated upon her person by the accused yet while
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testifying she has not made any echoings in absolute tandem
.
therewith rather she has therein disclosed that the aforesaid
Joghal Ram had merely arrived at the site of occurrence and that
he did not make any rescueratory intercession. The aforesaid
rescueratory role ascribed in the F.I.R vis-à-vis one Joghal Ram
and its non ascription qua him by her in her testification also
constrains an inference that the prosecutrix is hence contriving to
scuttle besides camouflage the truth qua the occurrence, hence
her testimony qua the occurrence is rendered to be both
uninspiring besides untrustworthy. Aggravated momentum to
the aforesaid inference is lent by the fact of the aforesaid Joghal
Ram “not” coming to be examined as a prosecution witness
“whereas” on his stepping into the witness box he would have
purveyed the entire truth qua the genesis of the prosecution
case. In sequel, the suppression by the prosecution, of the truth
qua the genesis of the occurrence, comprised in its omitting to
lead into the witness box, the aforesaid Joghal Ram, begets an
inference that the version qua the occurrence, for reasons
aforesaid, testified by PW-1 being insufficient to record findings
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of conviction with respect to the charge to which the accused
.
stood subjected to.
9. The learned Additional Advocate General has
contended that with PW-3 making a disclosure in her testification
that the apposite MLC Ext.PW-3/A revealing injuries in
consonance with the testification of the prosecutrix also hers
deposing that the injuries noticed by her to be occurring on her
person being relatable to the time of occurrence, spelt in the
apposite F.I.R hence, the prosecution succeeding in proving the
charge. However, the aforesaid submission is not worthy of
merit nor it countervails the ill-effect of the uninspiring testimony
qua the occurrence purveyed by PW-1. Moreso, when PW-3 has
accepted the suggestion put to her by the learned defence
counsel that the injuries borne on Ext.PW-3/A being sustainable
by fall on hard surface.
10. The learned Additional Advocate General has also
proceeded to contend that with the learned defence counsel
while holding PW-1 to cross-examination, his putting suggestions
to her, couched in an affirmative phraseology also with an apt
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communication therein that she is on talking terms with the
.
accused , suggestion whereof also stood replied in the
affirmative by PW-1 besides with the learned defence counsel
while holding PW-1 to cross-examination, his casting a suggestion
in an affirmative phraseology, that the accused had held talks
with the victim/lady, for 15 to 20 minutes, suggestion whereof
also evinced an alike affirmative response from the prosecutrix,
hence the prosecution proving the presence at the site of
occurrence of the accused also its proving the charge to which he
stood tried ‘dehors’ the uninspiring and untrustworthy testimony
purveyed by the prosecutrix with respect to the recitals held in
the apposite F.I.R. The aforesaid submission holds weight only
with respect to the presence of the accused at the relevant site of
occurrence. However, his presence at the site of occurrence,
cannot be extended to connote that the prosecution has proven
the entire chain of incidents borne in the apposite F.I.R.,
contrarily the effect of the aforesaid acquiescence of the
prosecutrix or of the accused, is that theirs conveying that she
was on the relevant day holding talks with the accused rather
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than as communicated by her in her examination in chief that the
.
accused on ingressing into her Varandah, his immediately
launching an assault on her person, hence the aforesaid
acquiescence rather also erodes the effect of the genesis of the
prosecution version borne in both the apposite F.I.R also as held
in her apposite testification, whereupon the Court is constrained
to conclude qua a false version qua the occurrence standing
reported to the police by the victim hence rendering it to be
unbelievable.
10. For the reasons which have been recorded hereinabove,
this Court holds that the learned Courts below have not appraised
the entire evidence on record in a wholesome and harmonious
manner, apart therefrom the analysis of the material on record by
the learned Addl. Sessions Judge suffers from a gross perversity
and absurdity of mis-appreciation and non appreciation of
evidence on record.
11. In view of above discussion, the appeal is allowed
and the impugned judgment rendered by the learned Addl.
Sessions Judge, is set aside. The appellant/accused is acquitted
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of the offences charged. The fine amount, if any, deposited by
.
the accused is ordered to be refunded to him. Personal and
surety bonds are cancelled and discharged.
26th May, 2017. ( Sureshwar Thakur )
Kalpana/™ Judge.
r to
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