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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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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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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