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State Of Himachal Pradesh vs Avtar Singh & Others on 22 April, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. Appeal No: 361 of 2009

.

Date of Decision No. 22.04.2019

State of Himachal Pradesh …….. Appellant

Versus
Avtar Singh others …..Respondents

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.

For the Appellant : Mr. Kunal Thakur Ms. Divya Sood,

Deputy Advocate Generals.

For the Respondents: Mr. Bal Ram Sharma, Advocate.
_

Sandeep Sharma, Judge (oral):

By way of instant Criminal appeal filed under

Section 378 of the Code of Criminal Procedure, challenge has

been laid to judgment of acquittal dated 2.4.2009, passed by

learned Sessions Judge (Forest) Shimla, District Shimla,

Himachal Pradesh, reversing the judgment of conviction/

sentence dated 13.2.2006/18.2.2006, passed by learned Judicial

Magistrate, 1st Class, Jubbal, camp at Theog, District Shimla,

1
Whether the reporters of the local papers may be allowed to see the judgment?

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2

H.P., whereby learned trial Court though held all the

respondents/accused guilty of having committed the offence

.

punishable under Section 323 read with Section 34 of IPC, but

while extending the benefit of provision of Probation of

Offenders Act, 1958, released the respondent/accused Kumari

Vibhuti on probation.

2. Briefly stated facts, as emerge from the record are

that on 7.10.2003, complainant namely. Smt. Asha Rathore

(PW­4) telephonically informed the police with regard to

quarrel allegedly took place at Shankar Niwas, Court Colony,

Theog. Police after having visited the spot recorded the

statement of the complainant under Section 154 Cr.P.C.

Ex.PW4/A, wherein she alleged that she is married to accused

Avtar Singh and out of their wedlock a daughter was born.

Allegedly, accused Avtar Singh started ill­treating her and she

was left by him in her brother’s house. Though, accused Avtar

Singh filed Divorce Petition against the complainant, but same

was dismissed. Subsequently, complainant filed petition for

Restitution of Conjugal Rights, which was allowed, but

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accused Avtar Singh despite there being Decree of Restitution

of Conjugal Rights passed in favour of the complainant,

.

started living separately with another accused namely, Rita

Devi. On 7.10.2003, complainant went to see the accused in his

quarter at Theog and as soon as she entered into his house,

accused started beatings her and threw her out of the room, as

a consequence of which, she suffered injuries on her arm and

other parts of her person. Person namely, Rita Kanwar(PW­

6), who had accompanied the complainant to the quarter of the

accused was also given beating by the accused while she was

trying to save her from the clutches of the accused. On the

basis of aforesaid statement given by the complainant under

Section 154 Cr.P.C, a formal FIR Ex.PW2/B came to be

registered against the accused. After completion of the

investigation, police presented the challan in the competent

Court of law, who being satisfied that a prima­facie case exist

against the accused, charged them for the offence punishable

under Sections 323 read with Section 34 of IPC, to which they

pleaded not guilty and claimed trial. However, fact remains

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that despite opportunity, they failed to lead evidence in

defence.

.

3. Learned trial Court vide judgment dated 13.2.2006

held all the accused guilty of having committed the offence

punishable under Section 323 IPC, however fact remains that

accused Vibhuti,who at that time had not completed 20 years

of age was given benefit of provisions of Probation of Offenders

Act, 1958. Learned trial Court convicted the accused Avtar

Singh and sentenced him to undergo simple imprisonment for

a term of six months and to pay fine of Rs. 1000/­, and in

default of payment of fine, to further undergo simple

imprisonment for a period of one month, whereas accused Rita

was convicted and sentenced to undergo simple imprisonment

for 15 days and to pay fine of Rs. 1000/­ and in default of

payment of fine to further undergo simple imprisonment for 15

days.

4. Feeling aggrieved and dissatisfied with the

aforesaid judgment of conviction recorded by the learned trial

Court, present respondents­accused preferred an appeal in the

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Court of learned Sessions Judge (Forest) Shimla, District

Shimla, H.P.,who vide judgment dated 2.4.2009 set aside the

.

judgment of conviction recorded by the learned trial Court and

acquitted all the respondents­accused of the charge framed

against them under Section 323 read with section 34 IPC. In

the aforesaid background, appellant­State has approached this

Court in the instant proceedings, praying therein for

restoration of the judgment of conviction recorded by the

learned trial Court after setting aside the judgment of

acquittal recorded by the learned Sessions Judge(Forest)

Shimla, H.P.

5. I have heard learned counsel representing the

parties and perused the record carefully.

6. Having carefully perused the material evidence

adduced on record by the prosecution, be it ocular or

documentary vis­a­vis reasoning assigned by the learned

Sessions Judge (Forest)Shimla, while reversing the judgment

of conviction recorded by the learned trial Court, this Court is

not persuaded to agree with the contention raised by Mr.

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Kunal Thakur, learned Deputy Advocate General that learned

Sessions Judge has failed to appreciate the evidence in its

.

right perspective, as a consequence of which, erroneous

findings have come to the fore. Rather, this court after having

carefully examined the statements of prosecutions witnesses,

is fully convinced and satisfied that there are material

discrepancies and inconsistencies in the statements of

prosecution witnesses and as such, no conviction could be

based upon the same. It is not in dispute that complainant and

respondent­accused No.1, Avtar Singh were married to each

other in the year, 1992 and out of their wedlock one daughter

was born. It is also not in dispute that Divorce Petition having

been filed by respondent/accused No.1 was dismissed, but

despite that he was not living with her wife i.e. complainant

Asha Rathore(PW­4). Though, complainant in her initial

statement given to the police under Section 154 Cr.P.C alleged

that respondent/accused Avtar Singh despite there being

decree of Restitution of Conjugal Rights had been living with

co­accused namely Rita Devi at Shankar Niwa, Court Colony,

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Theog, but if the evidence collected on record by the

prosecution is read in its entirety, it certainly compels this

.

Court to agree with contention of learned counsel representing

the respondents­accused that prosecution was not able to

prove on record beyond reasonable doubt that after dismissal

of Divorce Petition having been filed by the respondent­

accused Avtar Singh, he was living with co­accused namely,

Rita Devi. According to complainant, she was taken to the

house of accused Avtar Singh by one lady Smt. Rita

Kanwar(PW­6), whereas in her cross­examination, she stated

that she was not known to Rita Kanwar(PW­6) before the

alleged incident, whereas PW­6 in her cross­examination

clearly admitted that she was known to complainant(PW­4)

prior to the alleged incident. It has specifically come in her

cross­examination that PW­4 was known to her as she oftenly

used to visit her house at her village. It is not understood that

why complainant made wrong statement to the Court with

regard to her prior acquaintance with Smt. Rita Kanwar (PW­

6).

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7. Leaving everything aside, version put forth by the

complainant during her examination­in­chief that she met

.

Rita Kanwar(PW­6) for the first time of alleged incident, itself

cast serious doubt with regard to correctness of the story put

forth by the prosecution, especially in view of the

contradictory statement made by Rita Kanwar(PW­6). Apart

from above, both PW­4 and PW­6 deposed before the Court

below that when beatings were given to the complainant, her

clothes were torn and some blood fell on these clothes, but

interestingly torn and blood stained clothes of the complainant

never came to be taken into possession by the police.

8. SI. Raghubir Singh( PW­7) Investigating Officer,

admitted in the cross­examination that neither the clothes of

the complainant were shown to the police nor the injuries on

her person were so serious that blood might have fallen on

them. If the statement of prosecution witnesses are read

juxtaposing each other, it clearly emerges that at the time of

alleged incident number of people had gathered at the spot of

occurrence, but interestingly, none of the independent

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witnesses ever came to be associated by the police for the

reasons best known to it.

.

9. PW­5, Roshni Dogra, who happened to be owner of

the house namely Shankar Niwas, Theog also not supported

the case of the prosecution. She deposed that she had given

room to one Virender Kumar and feigned ignorance whether

accused Avtar and Reeta lived in that room and she also

feigned ignorance that on 7.10.2003 there had been some

quarrel between the parties. Version put forth by PW­5 Roshni

Dogra, who happened to be owner of the house namely

Shankar Niwas, where alleged incident took place, creates

serious doubt with regard to correctness of the story put forth

by the complainant.

10. True, it is that version put forth by the prosecution

witnesses, if any, cannot be brushed aside solely on the ground

of non­association of the independent witnesses, but in the

case at hand story put forth by the complainant does not

inspire confidence, rather same appears to be concocted one

and as such, non­association of independent witnesses,

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especially when they were available in the abundance, is fatal

to the prosecution case.

.

11. Perusal of MLC Ex.PW1/A, which came to be

proved by PW­1, Dr. Nipun Parihar, reveals that injuries, if

any, on the person of complainant were caused/inflicted

within 12 hours but in her cross­examination she admitted

that there is no mention to this effect in the MLC Ex.PW1/A.

She admitted in her cross­examination that she cannot tell the

duration of injures by referring to this effect and as such,

statement of PW­1 is of not much relevance as far as

determination of guilt, if any, committed by the accused at the

time of alleged incident.

12. By now it is well settled that in a criminal trial

evidence of the eye witness requires a careful assessment and

needs to be evaluated for its creditability. Hon’ble Apex Court

has repeatedly held that since the fundamental aspect of

criminal jurisprudence rests upon the well established principle

that “no man is guilty until proved so”, utmost caution is

required to be exercised in dealing with the situation where there

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are multiple testimonies and equally large number of witnesses

testifying before the Court. Most importantly, Hon’ble Apex

.

Court has held that there must be a string that should join the

evidence of all the witnesses and thereby satisfying the test of

consistency in evidence amongst all the witnesses. In nutshell, it

can be said that evidence in criminal cases needs to be evaluated

on touchstone of consistency. In this regard, reliance is placed

upon the judgment passed by Hon’ble Apex Court in C. Magesh

and others versus State of Karnataka (2010) 5 Supreme

Court Cases 645, wherein it has been held as under:­

“45. It may be mentioned herein that in criminal

jurisprudence, evidence has to be evaluated on the

touchstone of consistency. Needless to emphasis,

consistency is the keyword for upholding the conviction

of an accused. In this regard it is to be noted that this

Court in the case titled Surja Singh v. State of U.P.

(2008)16 SCC 686: 2008(11) SCR 286 has held:­( SCC

p.704, para 14)

” 14. The evidence must be tested for its inherent
consistency and the inherent probability of the
story; consistency with the account of other
witness is held to be creditworthy;..the probative
value of such evidence becomes eligible to be put
into the scales for a cumulative evaluation.”

46. In a criminal trial, evidence of the eye witness

requires a careful assessment and must be evaluated for

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its creditability. Since the fundamental aspect of

criminal jurisprudence rests upon the stated principle

that ” no man is guilty until proven so,” hence utmost

.

caution is required to be exercised in dealing with

situation where there are multiple testimonies and

equally large number of witnesses testifying before the

Court. There must be a string that should join the

evidence of all the witnesses and thereby satisfying the

test of consistence in evidence amongst all the witnesses.

13. In the case at

hand, there are

contradictions and inconsistencies in the statements of the
r material

prosecution witnesses and as such, no conviction could be

based upon the same.

14. Consequently, in view of the detailed discussion

made hereinabove as well as law referred hereinabove, this

Court sees no illegality and infirmity in the impugned

judgment of acquittal passed by the learned Sessions

Judge(Forest)Shimla, which otherwise appears to be based

upon the proper appreciation of the evidence adduced on

record and as such, same is upheld.

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Accordingly, the present appeal is dismissed being

devoid of any merit alongwith pending applications, if any.

.

(Sandeep Sharma),
Judge

22nd April, 2019
(shankar)

r to

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