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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