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State Of H.P vs Sher Singh & Another on 10 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. Appeal No. 322 of 2009.

Reserved on: 4th April, 2018.

.

Date of Decision: 10th April, 2018.

State of H.P. …..Appellant.
Versus

Sher Singh another ….Respondents.

Coram

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. Hemant Vaid, Addl.

Advocate General

For the Respondents: Mr. H.S. Rangra, Advocate.

Sureshwar Thakur, Judge

The instant appeal stands directed by the

State of Himachal Pradesh against the judgment

rendered on 16.02.2009 by the learned Addl. Chief

Judicial Magistrate, Court No.1, Mandi, H.P. in Criminal

Case No. 93-II/2001, whereby, he acquitted the

accused for theirs allegedly committing offences

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2

punishable under Sections 354, 294, 509 IPC read with

Section 34 of the IPC.

2. The facts relevant to decide the instant case

.

are that on 10.4.2001 at about 5.15 p.m. at place

Bangot, accused Sher Singh an Lakshman Ram in

furtherance of their common intention have used

criminal force against Kumari Nirmal Devi with an

intention to outrage her modesty and also done

obscene activities to annoy her. Accused Sher Singh is

alleged to have opened his pant and used filthy

language against complainant Nirmala Devi. At that

time, complainant Nirmala Devi was accompanied by

her mother Smt. Soma Devi. Smt. Nirmal Devi qua the

occurrence lodged the FIR with Police Station Balh and

thereafter the police completed all the codel

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 stood charged by the learned

trial Court for theirs committing offences punishable

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under Sections 354, 294, 509 IPC read with Section 34

of the IPC. In proof of the prosecution case, the

prosecution examined 7 witnesses. On conclusion of

.

recording of the prosecution evidence, the statements

of the accused under Section 313 of the Code of

Criminal Procedure were recorded by the learned trial

Court, wherein the accused claimed innocence, and,

pleaded false implication.

5. On an appraisal of the evidence on record,

the learned trial Court, returned findings of acquittal in

favour of the accused/respondent herein.

6. The State of H.P. stands aggrieved by the

judgment of acquittal recorded in favour of the

accused/respondents, by the learned trial Court. The

learned Addl. Advocate General for the State, has

concertedly, and, vigorously contended qua the findings

of acquittal 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 of the material on record.

Hence, he contends qua the findings of acquittal

warranting reversal by this Court in the exercise of its

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4

appellate jurisdiction, and, theirs standing replaced by

findings of conviction.

7. On the other hand, the learned counsel

.

appearing for the accused/respondents herein has with

considerable force and vigour, contended qua the

findings of acquittal 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
r 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 apposite FIR is borne in Ex.PW3/A. The

aforesaid FIR, as lodged on 12.04.2001, contains,

recitals qua an alleged incident which occurred, on

10.04.2001. However, no explication has emanated

either from the complainant or from the prosecution

vis-a-vis the belated lodging of the FIR, thereupon, the

recitals borne therein, are construable to be sequel of

proactive premeditation or contemplation, besides

hence are rendered unamenable for imputation of

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credence thereto. The aforesaid inferences, are,

enhanced by the factum of non occurrence, in the

apposite FIR, the name of co-accused Lakshman,

.

whereas, the aforesaid is testified to be also

accompanying co-accused Sher Singh besides is

testified to use filthy language.

10. Furthermore, even though, the prosecutrix,

and, her mother deposed consistent versions qua the

occurrence, yet their consistent testifications qua the

recitals borne in Ex.PW3/A, rather lose their probative

sanctity, (a) given both eye witnesses to the occurrence

one Indru, who testified as PW-1, and, one PW Ratni

Devi, who testified as PW-6, rather hence in their

respectively rendered testifications hence resiling from

their previous statements recorded in writing, (b) also

upon theirs being, on a request made by the learned

APP, hence declared hostile by the learned trial

Magistrate, yet theirs during the course, of their

respective cross-examination(s), rather not making any

articulations, supportive of the charge. The effects of

the aforesaid independent witnesses to the occurrence,

not, lending succor to the consistent testifications of

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the prosecutrix, and, her mother, obviously hence

render all the echoings made by the prosecutrix, and,

her mother, in their respectively rendered testifications,

.

to hence, not acquire any creditworthiness, rather with

the FIR being belatedly lodged, and, with no tangible

explanation being purveyed by the prosecution, for the

belated lodging of the FIR, thereupon, it has to be firmly

concluded of the complainant, and, her mother

inventing a coloured version(s) qua the occurrence,

rendering them, hence, to be not amenable for

imputation of credence thereto.

11. 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 does not suffer from a gross perversity or

absurdity of mis-appreciation and non appreciation of

evidence on record.

12. Consequently, there is no merit in the instant

appeal and it is dismissed accordingly. In sequel, the

impugned judgment is affirmed and maintained. All

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pending applications also stand disposed of. Records

be sent back forthwith.

.

(Sureshwar Thakur)

10 th
April, 2018. Judge.

(jai)

r to

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