IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 94 of 2008
Reserved on: 26.04.2018
Decided on: 04.05.2018
.
_
State of H.P. …..Appellant.
Versus
Balbir Singh and others. ……Respondents.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting?
_
For the appellant: Mr. Sudhir Bhatnagar and Mr.
Vinod Thakur, Additional
Advocates General with Mr. J.S.
Guleria and Mr. Bhupinder
Thakur, Deputy Advocates
General.
For respondents No. 1 to 3: Mr. Peeyush Verma, Advocate.
For respondent No. 4: Mr. G.S. Rathour, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State,
laying challenge to judgment dated 21.09.2007, passed by learned
Sessions Judge, Shimla, District Shimla, H.P., in Sessions Trial No.
18-S/7 of 2007, whereby the accused/respondents (hereinafter
1
Whether reporters of Local Papers may be allowed to see the judgment?
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referred to as “the accused persons”) were acquitted for the
commission of offences punishable under Sections 363, 366 and 368
of Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
.
2. The prosecution case proceeds on the basis that on
15.07.2006, Shri Bihari Lal (complainant) reported at Police Station,
Chirgaon, that his wife and children used to reside at Rohru. He has
two sisters, namely, Smt. Partap Devi and Smt. Ratan Devi. He has
further averred that his sister, Smt. Ratan Devi, is married to Shri
Mehar Chand and their daughter, prosecutrix (name withheld) is 16
years of age. Smt. Ratan Devi had been divorced by her husband
and subsequently she remarried with Shri Partap Singh. The
prosecutrix used to reside with him and she studies in 10th class.
Accused Praja Patti also resides in the same village and is married to
one Rohit. He has further contended that in the morning of
02.07.2006 the prosecutrix went missing from the house. The
complainant inquired about the whereabouts of the prosecutrix from
his mother, whereupon he was informed that in the morning she
went to bring grass, but she did not return. Despite best efforts, the
prosecutrix could not be found and on 13.07.2006 Shri Manoj
Kumar, Physical Education Teacher, High School Khabal, informed
the complainant that he received a telephonic call from the
prosecutrix and she divulged that accused Praja Patti has kept her
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in village Naloti, Anandpur Sahib, with a person and accused Praja
Pati has left the place. The police, on the basis of the complaint, so
made by the complainant, registered a case and investigation
.
ensued. On 16.07.2007, police visited the house of accused Swarn
Kuar and the prosecutrix was recovered. The prosecutrix was
entrusted in the custody of her maternal uncle (complainant). After
conclusion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as
many as eight witnesses. Statements of the accused persons were
recorded under Section 313 Cr.P.C., wherein they pleaded not guilty.
Accused Balbir Singh admitted that he has paid Rs. 15,000/- to
accused Praja Patti, as marriage expenses he also admitted the
recovery of the prosecutrix from his house. Accused Mehanga Singh
and Swaran Kaur have also admitted the recovery of the prosecutrix
from their house. However, the accused persons did not lead any
defence evidence.
4. The learned Trial Court, vide impugned judgment dated
21.09.2007, acquitted the accused persons for the offence
punishable under Section 363, 366 and 368 IPC, hence the present
appeal preferred by the appellant/State.
5. The learned Additional Advocate General has argued that
the learned Trial Court without taking into consideration the
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evidence, which has come on record, and by ignoring the statements
of the prosecution witnesses as well as the documents, which clearly
establish the guilt of the accused persons, acquitted the accused
.
persons. He has argued that the learned Trial Court has ignored the
testimonies of PW-1 (prosecutrix), PW-2, Shri Bihari Lal and PW-7,
Shri Des Raj. He has further argued that the prosecutrix was minor
and her date of birth has been proved on record by PW-7, Shri Des
Raj. Conversely, the learned counsel for respondents No. 1 to 3 has
argued that even after re-appreciating the evidence, the prosecution
has failed to establish the guilt of accused No. 1 to 3 beyond the
shadow of reasonable doubt. He has further argued that the learned
Trial Court has rightly and correctly appreciated the evidence, so the
appeal be dismissed. The learned counsel for respondent No. 4 has
vehemently argued that the prosecution has failed to establish the
role of respondent No. 4. He has further argued that respondent No.
4 is innocent and has been falsely implicated in the case in hand.
There is no evidence against respondent No. 4, thus the findings
recorded by the learned Trial Court are the result of proper
appreciation of the material, which has come on record. He has
prayed that the appeal, which sans merits, be dismissed.
6. In rebuttal, the learned Additional Advocate General has
argued that as the statements of PW-1, PW-2 and PW-7 inspire
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confidence, so the accused persons can be convicted on the basis of
their testimonies.
7. In order to appreciate the rival contentions of the parties
.
we have gone through the record carefully.
8. In the facts and circumstances of the case in hand, the
statement of the prosecutrix is very vital. The prosecutrix was
examined as PW-1. She has deposed that her parents have taken
divorce and her mother has remarried and used to live in village
Diudi. She used to reside in the house of her maternal uncle, Shri
Bihari Lal. She has further deposed that her mossi and maternal
grand mother also reside with her maternal uncle. As per the
testimony of the prosecutrix, on 02.07.2006, at 07:00 a.m., she had
gone to orchard for collecting grass and on that day her uncle and
mossi had gone to dogri, at village Gumati, for collecting grass. She
has further deposed that accused Praja Patti met her at village Sheel
and she after asking her took her to Rohru. Accused Praja Patti told
the prosecutrix that she had seen a boy for marrying her, who
belongs to a reputed family and owns a vehicle. Accused Praja Patti
also told her that the boy belongs from Kandaghat, so they came to
Kandaghat. As per the prosecutrix, they stayed for a night in a
room, but that boy was not there. On subsequent morning, accused
Praja Patti took the prosecutrix in a bus to Ropar, Punjab, and they
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went to village Naloti in District Ropar. They went to the house of
accused Balbir Singh, where accused Praja Patti had a conversation
qua the marriage of the prosecutrix. As per the prosecutrix, accused
.
Mehanga Ram and his wife Swarn Kaur were also present there. The
prosecutrix did not agree to marry accused Balbir Singh, so accused
Praja Patti threatened her. Thereafter, accused Praja Patti took
`15,000/- from accused Balbir Singh and left the place. After two-
three days, i.e., on 13.07.2006, on the pretext of making a telephonic
call to her friend, the prosecutrix telephoned PTI, Shri Manoj Kumar
(PW-3) and divulged the entire incident to him. On 15.07.2006 her
maternal uncle came to village Naloti alongwith the police and took
her back. As per the prosecutrix, her date of birth is 23.11.1990.
The prosecutrix, in her cross-examination, has deposed that when
she alongwith accused Praja Patti was walking towards the house of
accused Balbir Singh, they came across many people, but she did
not raise any alarm, as the accused had threatened her. She has
further deposed that she stayed in the house of accused Balbir Singh
for a month and STD booth is at a distance of 4-5 kilometers from
there. As per this witness, mobile phone of her maternal uncle was
not reachable. She denied that her maternal uncle has falsely roped
in accused Praja Patti. During the period of one month, when she
stayed in the house of accused Balbir Singh, many persons came to
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his house. As per her testimony, accused Balbir Singh used to leave
the house at 09:00 a.m. and he used to return at about 05:00 p.m.
and in the night she used to sleep with the mother of accused Balbir
.
Singh, who was about 70-75 years. She has also deposed that upon
her willingness, accused Balbir Singh took her to STD booth to make
a phone call. Accused Balbir Singh gave another telephone number
to her for calling. As per the prosecution, she was not subjected to
sexual intercourse during the period she remained in the house of
accused Balbir Singh. The prosecutrix has deposed that accused
Praja Patti told to accused Balbir Singh that she would go to Rohru
and bring the date of birth certificate of the prosecutrix and
thereafter get the prosecutrix married to him and when accused
Praja Patti did not turn up, accused Balbir Singh himself told the
prosecutrix to call some of her relatives, so he took the prosecutrix to
the STD booth. She has further deposed that when his maternal
uncle alongwith the police came there, the mother of the accused
voluntarily handed over her custody to her uncle.
9. Now, the statements of other prosecution witnesses are
to be examined. PW-2, Shri Bihari Lal (complainant), deposed that
parents of the prosecutrix have taken divorce and her mother has
remarried. He has further deposed that the prosecutrix used to
reside in his house. On 02.07.2006 the prosecutrix went to dogri
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and after that she went missing. Despite best efforts, the
prosecutrix could not be found and on 13.07.2006 he was informed
by Physical Education Teacher, High School Khabal, that he had
.
received a telephonic call from the prosecutrix and she informed him
that she has been sold by accused Praja Patti in some village in
Ropar. On 15.07.2006, he lodged a complaint in the police station
and went to Ropar alongwith the police. On 16.07.2006 the
prosecutrix was found in the house of accused Balbir Singh. This
witness, in his cross-examination, has deposed that accused Praja
Patti’s father had land in village Khabal, which was sold by accused
Praja Patti. He denied that that land was suitable for him. AS per
this witness, the prosecutrix met him after 15-20 days. However, he
again stated that after 14 days. He has deposed that he knew that if
a person goes missing, a report has to be lodged. He did not know
the date of birth of the prosecutrix. The prosecutrix was medically
examined and she was not subjected to sexual intercourse.
10. PW-3, Shri Manoj Kumar, Physical Education Teacher,
deposed that the prosecutrix was studying in 10th standard in the
year 2006 and on 02.07.2006 the school was closed, being Sunday.
From 03.07.2006 the prosecutrix was absent from the school and on
13.07.2006, at about 05:00 p.m., he received a telephonic call from
the prosecutrix on his mobile, having No. 9816275999. The
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prosecutrix divulged to him that she has been taken to village Naloti,
Anandpur Sahib, by accused Praja Patti and she has been kept with
a person. He disclosed these facts to Shri Bihari Lal (PW-2). On
.
15.07.2006, at about 09:00 a.m., he received a telephonic call from
the prosecutrix and when he tried to contact back, there had been
no response from the other side. The mobile number of that mobile
was 98164-53047. This witness, in his cross-examination, has
deposed that he received a phone call from the prosecutrix, which
was made from STD/PCO, as the prosecutrix has herself told this
fact to him. He informed Shri Bihari Lal (PW-2) through the phone
of Shri Joginder, Shanstri.
11. PW-4, Shri Bhupinder Singh, deposed that accused Praja
Patti was in village Khabal prior to 02.07.2006 for 5-6 months and
thereafter she was not seen. This witness, in his cross-examination,
has admitted that there are about 80 houses in village Khabal and
he used to cultivate the land of accused Praja Patti. He admitted
that accused Praja Patti took her land back from him. PW-5, Smt.
Usha, has deposed that she has accommodation at Kandaghat, near
the accommodation of one Gian Chand, and she knows accused
Praja Patti. She has further deposed that in the month of July,
2006, accused Praja Patti was accompanied by a girl and from her
she took the keys of the accommodation of Gian Chand. As per the
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version of this witness, accused Praja Patti and that girl stayed in
the said accommodation and on the next morning they left and
handed over the keys to her. Accused Praja Patti also told her that
.
she is going to Punjab. This witness, in her cross-examination, has
deposed that where she was staying is three storeyed building
situated on national highway. PW-6, Shri Bittu Ram, Panchayat
Sahayak, Gram Panchayat, Khabal, deposed that upon application,
Ex. PW-6/A, which was moved by the police, he prepared Ex. PW-
6/B, copy of pariwar register. He has also issued date of birth
certificate of the prosecutrix, which is Ex. PW-6/D. As per this
witness, the date of birth of the prosecutrix is 23.11.1990.
12. PW-7, Shri Des Raj, TGT Arts, Government Middle
School, Chodoli, has deposed that on application, Ex. PW-7/A, he
issued letter, Ex. PW-7/B, qua the date of birth of the prosecutrix.
He has further deposed that he had issued Ex. PW-7/B from
Admission and Withdrawal register. As per the record, the date of
birth of the prosecutrix is 23.11.1990. This witness, in his cross-
examination, has deposed that he did not verify the correctness of
the record and he has issued Ex. PW-7/B only on the basis of entry
made in School Admission and Withdrawal register.
13. PW-8, SI Pritam Singh, deposed that on 15.07.2006 Shri
Bihari Lal (complainant) reported the matter at Police Station
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Chirgaon, whereupon FIR, Ex. PW-2/A, was registered, which bears
his signatures. Subsequently, investigation ensued and on
14.12.2006, through application, Ex. PW-6/C, he obtained date of
.
birth certificate of the prosecutrix, which is Ex. PW-6/D, from
Panchayat Sahayak, Khabal. He has further deposed that he
arrested accused Praja Patti and also recorded the statements of
some of the witnesses. As per the testimony of this witness, the
investigation in this case was partly carried out by ASI Roop Lal, I.O.
Police Station, Chirgaon. He has identified his signatures. He
prepared the spot map, Ex. PW-7/A and has also written application,
Ex. PW-6/A, to Headmaster, High School, Khabal, whereby letter,
Ex. PW-6/B, was obtained. As per the version of this witness, ASI
Roop Lal took the prosecutrix for medical examination, but she
refused. He has identified the applications written in his behalf by
ASI Roop Ral, which are Ex. PW-7/B and Ex. PW-7/C. He has
deposed that ASI Roop Lal got recovered the prosecutrix from village
Naloti and memo in this regard is Ex. PW-1/A and the prosecutrix
was entrusted in the custody of her uncle Bihari Lal, vide memo, Ex.
PW-1/B. This witness, in his cross-examination, has deposed that
he did not inquire from Shri Manoj Kumar (PW-3) that why he did
not report the matter on 13.07.2006. He admitted that he did not
obtain call record of Shri Manoj Kumar. He feigned his ignorance
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whether in whose presence the prosecutrix was recovered. He did
not know whether the statements of the persons living in the
neighbourhood of accused Mehanga Ram were recorded or not. As
.
per this witness, the prosecutrix was stated to have born in Kullu,
but he did not obtain any record qua her date of birth from Kullu, as
she was major according to that record. He also did not try to
ascertain the date of birth of the prosecutrix from her mother.
14. After thoroughly discussing the testimonies of the
prosecution witnesses now the same is to be examined on the touch
stone of veracity and it is to be seen that the same inspire confidence
or not. As per the prosecution case, the prosecutrix, who was a
minor, was enticed away by accused Praja Patti. The prosecutrix was
taken away by accused Praja Patti out of the lawful custody of her
guardian in order to compel her to marry against her will. It has
come on record that the date of birth of the prosecutrix is
23.11.1990, so on the date of incident she was little under 16 years
of age. The date of birth certificate, Ex. PW-6/B, which is copy of
pariwar register, clearly established the date of birth of the
prosecutrix. It has also come on record that the prosecutrix was
under-matric, thus in all circumstances she was reasonably
educated and well aware of her good and bad. There is not even an
iota of evidence which shows that the prosecutrix was forcibly taken
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to Rohru, Kandaghat and then to Ropar. In fact, the presumption
that accused Praja Patti might have simply told the prosecutrix that
she had seen a bridegroom for her at Kandaghat, so the prosecutrix
.
accompanied her, has considerable force and the same cannot be
given a go-by. Thus, there is every possibility that the prosecutrix
herself accompanied accused Praja Patti and as the prosecutrix was
of the age of perception and educated also, she knew that aftermath
of going with accused Praja Patti and in fact she voluntarily went
with her. Therefore, the allegation that accused Praja Patti enticed
away the prosecutrix, out of the lawful custody of her guardian in
order to compel her to marry against her will, has no force. So,
accused Praja Patti cannot be convicted for the offences, as alleged
by the prosecution. The prosecution has failed to establish on
record that accused Praja Patti enticed or kidnapped the prosecutrix.
15. In the wake of the fact that the prosecutrix was not
enticed or kidnapped by accused Praja Patti and she voluntarily
accompanied her to Rohru, Kandaghat and then to Ropar, therefore,
the offence under Section 366 IPC is also not established against
other accused persons. Now, the only offence, which survives
against accused No. 1 to 3, is under Section 368 IPC. The
prosecutrix has herself admitted, in her cross-examination, that she
used to stay in the house of accused Balbir Singh and his parents
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also used to stay there. As per the prosecutrix, accused Balbir Singh
used to leave the house at 09:00 a.m. and he used to return at 05:00
p.m. The prosecutrix has categorically deposed that during her stay
.
in the house of accused Balbir Singh, she used to sleep with accused
Swarn Kaur, mother of accused Balbir Singh. She has further
deposed that accused Balbir Singh himself took her to STD booth to
make a phone call, when she expressed willingness to do so. As per
the version of the prosecutrix, accused Balbir Singh gave her another
phone and told her that she can receive calls on this number, in case
she wanted to talk with someone. She has categorically deposed
that she was not subjected to any physical assault during her stay in
the house of accused Balbir Singh and she was also allowed free
movement. It has also come in the version of the prosecutrix that
accused Praja Patti returned to Rohru to bring her date of birth
certificate and thereafter the prosecutrix was to be married with
accused Balbir, but when, for considerable time acused Praja Patti
did not return, accused Balbir himself asked the prosecutrix to call
her relatives and for that purpose he took her to STD booth. The
prosecutrix has admitted that when her maternal uncle alongwith
the police came to the house of accused Balbir, accused Swarn Kaur
herself voluntarily handed her over to them.
16. In the above backdrop, the most probable presumption is
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that the prosecutrix was not enticed away or kidnapped and she was
also not confined in the house of accused Balbir. In fact, the
prosecutrix voluntarily stayed in the house of accused Balbir, so as
.
to make accused No. 1 to 3 believe that she is major, as only after
satisfaction accused Balbir was to marry her. The prosecutrix was
free in the house of accused Balbir and accused Balbir himself took
her to STD booth to make a phone call to her relatives. So, in view of
the above, it cannot be said that the prosecution has established the
guilt of the accused persons beyond the shadow of reasonable doubt.
In fact, the prosecution has miserably failed to establish that the
prosecutrix was enticed away by accused Praja Patti and she was
confined in the house of accused No. 1 to 3.
17. It has been held in K. Prakashan vs. P.K. Surenderan
(2008) 1 SCC 258, that when two views are possible, appellate
Court should not reverse the judgment of acquittal merely because
the other view was possible. When judgment of trial Court was
neither perverse, nor suffered from any legal infirmity or non
consideration/mis-appreciation of evidence on record, reversal
thereof by High Court was not justified.
18. The Hon’ble Supreme Court in T.Subramanian vs.
State of Tamil Nadu (2006) 1 SCC 401, has held that where two
views are reasonably possible from the very same evidence,
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prosecution cannot be said to have proved its case beyond
reasonable doubt.
19. In Chandrappa vs. State of Karnataka, (2007) 4 SCC
.
415, the Hon’ble Supreme Court has culled out the following
principles qua powers of the appellate Courts while dealing with an
appeal against an order of acquittal:
“42. From the above decisions, in our
considered view, the following general
principles regarding powers of theappellate court while dealing with an
appeal against an order of acquittal
emerge:
1. An appellate court has full power to
review, reappreciate and reconsider
the evidence upon which the order of
r acquittal is founded.
2. The Code of Criminal Procedure, 1873
puts no limitation, restriction or
condition on exercise of such power
and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of factand of law.
3. Various expressions, such as,
‘substantial and compelling reasons’,
‘good and sufficient grounds’, ‘verystrong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc.
are not intended to curtail extensivepowers of an appellate court in an
appeal against acquittal. Such
phraseologies are more in the natureof ‘flourishes of language’ to
emphasise the reluctance of an
appellate court to interfere with
acquittal than to curtail the power of
the court to review the evidence and
to come to its own conclusion.
4. An appellate court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour
of the accused. Firstly, the
presumption of innocence is available
to him under the fundamental
principle of criminal jurisprudence05/05/2018 22:54:30 :::HCHP
17that every person shall be presumed
to be innocent unless he is proved
guilty by a competent court of law.
Secondly, the accused having secured
his acquittal, the presumption of his
innocence is further reinforced,
reaffirmed and strengthened by the.
trial Court.
5. If two reasonable conclusions are
possible on the basis of the evidence
on record, the appellate court should
not disturb the finding of acquittalrecorded by the trial Court.”
20. Having tested the entire evidence, including the
testimony of the prosecutrix (victim), we are not satisfied with the
truthfulness of the story, as portrayed by the prosecution and we
find it difficult to come to a conclusion that the case falls under the
category of cases in which the accused persons can be convicted. In
the case in hand, even the testimony of the prosecutrix does not
inspire confidence and what to speak of other prosecution witnesses.
Therefore, the testimony of the prosecutrix raises inexplicable
questions, which go unanswered even with the aid of the testimonies
of other prosecution witnesses. In all it can be said that the
statements of prosecution witnesses are not of sterling quality,
capable of inspiring the confidence. Taking into consideration entire
facts and circumstances of the case, evidence, including the medical
evidence, we are not convinced that the prosecution has been able to
prove its case beyond the shadow of reasonable doubt, as such, it is
more than safe to hold that the prosecution has failed to prove the
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guilt of the accused persons beyond all reasonable doubts and the
findings of acquittal, as recorded by the learned Trial Court, needs
no interference, as the same are the result of appreciating the facts
.
and law correctly and to their true perspective. Accordingly, the
appeal, which sans merits, deserves dismissal and is dismissed.
21. In view of the above, the appeal, so also pending
application(s), if any, stand(s) disposed of. Bail bonds are cancelled.
r to (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
4th May, 2018
(virender)
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