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State Of Himachal Pradesh vs Chhotu Ram on 5 January, 2018

.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 618 of 2008
Date of Decision 05th January, 2017

__

State of Himachal Pradesh ….Appellant.

Versus

Chhotu Ram ….Respondent

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes
__

For the Appellant: Shri Rupinder Thakur,
Addl.Advocate General with Shri
Pankaj Negi, Deputy Advocate
General

For the Respondent: Ms. Meera Devi, Advocate

Vivek Singh Thakur, J.(Oral)

This appeal has been preferred by the State against

acquittal of the respondent vide judgment dated 1.7.2008

passed by learned Sessions Judge, Kinnaur Sessions Division at

Rampur Bushahr H.P. in Cr. Appeal No. 5 of 2005 titled Chhotu

1
Whether Reporters of Local Papers may be allowed to see the judgment? Yes

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2

Ram vs. State of H.P., whereby conviction and sentence imposed

upon respondent, vide judgment dated 30.3.2005 passed by

.

learned Sub Divisional Judicial Magistrate, Ani in criminal case

No. 75-2 of 2004 in case FIR No. 78/2004 dated 29.8.2004

registered under Sections 354, 294, 506, 290 and 510 IPC in P.S.

Ani, has been reversed.

2. I have heard learned counsel for parties and have

also gone through record of the case.

3. Prosecution case, in brief, is that on 29.8.2004 at

about 12.45 PM, respondent, under influence of liquor, came on

shop of PW1 Shakuntla and asked her to join him and on her

refusal, respondent molested and abused her. Complainant was

rescued by PW2 Asha Devi and PW3 Kamla Devi from clutches of

the respondent. Complainant rushed to the police station, lodged

FIR Ext.PW1/A, whereafter investigation was carried on. Accused

was got medically examined through PW4 Dr.Manjit Singh, who

issued MLC Ext.PW4/A. Site map Ext.PW5/A was prepared.

Statements of witnesses were recorded. On completion of

investigation, prima facie finding complicity of accused in

commission of offence, challan was presented in Court.

4. On conclusion of trial, respondent was convicted

under Section 290, 294, 354 and 506 IPC and was sentenced to

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pay fine of Rs.200/- for offence punishable under Section 290

IPC, simple imprisonment for one month for offence punishable

.

under Section 294 IPC and to pay fine of Rs.500/-, simple

imprisonment for three months and to pay fine of Rs.500/- for

offence punishable under Section 354 IPC and simple

imprisonment for three months and pay fine of Rs.500/- for

offence punishable under Section 506 IPC and in default of

payment of fine, to further undergo simple imprisonment for two

months for all aforesaid offences.

5.

In appeal, preferred by the respondent, learned

Sessions Judge has acquitted him from the offences charged.

Hence, the present appeal.

6. Prosecution has examined five witnesses. PW1

Shakuntla Devi is complainant, PW2 Asha Devi and PW3 Smt.

Kamla Devi are spot witnesses. PW4 is Dr.Manjeet Singh who has

medically examined the respondent. PW5 SHO Manohar Lal is

Investigating Officer.

7. As per prosecution case, occurrence took place on

12.45 PM. PW1 has lodged FIR Ext.PW1/A at 1 PM i.e. within

fifteen minutes of occurrence stating therein that respondent

under the influence of liquor came to her and asked her to join

his company him and on her refusal started abusing which was

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objected by her. Thereupon, respondent started molesting her,

whereupon she started crying. She was rescued by Kamla Devi

.

and Asha Devi who were present on spot at that time. In her

deposition in Court, PW1 corroborated her statement made in

Ext.PW1/A with little negligible difference that respondent

molested her and started abusing her on her refusal to

accompany him. PW2 Asha Devi has fully corroborated the

statement of PW1 complainant. PW3 in her deposition in Court

has also stated that accused caught complainant from her breast

and asked her to accompany him and on refusal of complainant,

he started abusing her.

8. Respondent was medically examined at 3 PM within

about two hours of incident. On examination, it was noticed by

the doctor that patient was breathing of alcohol (smelling of

alcohol), his conjuctiva of both eyes were congested, pupils were

equal and showed sluggish reaction to light, pulse was full and

bouncing, gait was disturbed and patient was unable to walk in a

straight line, corrodination was impaired and patient was oxcited.

It was also noticed that there was swelling on left side of his lip,

with complaint of pain on right thigh medial side and clotted

blood was also present at nostrils. Finally, it was opined by the

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doctor that patient had consumed alcohol and he was under its

effect.

.

9. In cross examination to witnesses, main defence

appears to have been taken is that PW2 and PW3 were related to

PW1 complainant and the spot of incident is bus stand and being

so busy place, a large number of persons always remains present

there and none of them has been associated as a witness. It is

also put to complainant that complainant and respondent as well

as PW2 and PW3 are vegetable sellers on the bus stand and in

the shop of respondent, his wife also used to sit.

10. In his statement recorded under Section 313 Cr.P.C.,

in answer to question No. 7, as to why prosecution witnesses had

deposed against him, the respondent had replied that

complainant had borrowed Rs.1000/- from him and when he

demanded the aforesaid money back, complainant lodged this

false case against him. This defence has been disclosed for the

first time in statement under Section 313 Cr.P.C.

11. It is settled that conviction cannot be based on

statement made under Section 313 Cr.P.C. At the same time,

plea of defence taken in statement under Section 313 Cr.P.C.,

not corroborated by material on record or proved by leading a

reliable evidence, definitely might not be proving beyond

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reasonable doubt, but establishing preponderance of probability

of defence taken in statement under Section 313 Cr.P.C. The

.

defence taken in statement under Section 313 Cr.P. is of no avail

to the respondent as this defence was never put to PW1

complainant or spot witnesses PW 2 and PW3.

12. Plea of respondent that no independent witnesses

out of the persons present on bus stand, who witnessed the

incident, have been associated is also untenable for the reason

that bus stand like a public place always have floating visitors.

The persons witnessing an incident at a particular point of time

may or may not be available at the time of investigation being

carried out by Investigating Officer.

13. It is also settled that testimony of related or

interested witnesses cannot be brushed aside only on the ground

that they are interested or related witnesses unless their interest

to get the accused convict in any eventuality for extraneous

reason is proved on record and also otherwise version of such

witness is not found to be reliable. Undoubtedly, testimony of

interested and related witnesses is to be dealt with more care

and caution so as to rule out the false complicity of accused in

offence. In present case there is no material contradiction or

discrepancy in statements of PW1, PW2 and PW3, rather

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circumstances of the case i.e. lodging of FIR within fifteen

minutes of incident and medical examination of accused within

.

two hours of incident and observation of doctor with

corroboration the version of complainant that respondent was

under the influence of liquor forfity the prosecution story.

14. Learned Sessions Judge has acquitted the accused

without appreciating the entire evidence on record and has given

weightage to the immaterial facts which were not affecting the

root of prosecution story. The trial Court had correctly and

completely appreciated the evidence on record and had rightly

convicted the respondent. Therefore, conviction of respondent as

ordered by the trial Court is upheld.

15. At this stage, learned counsel for the respondent

submits that incident had taken place in the year 2004 and now

after lapse of 13 years, it would not be appropriate to award

substantial sentence to the respondent, rather it would be

appropriate to extend the benefit of Probation of Offenders Act to

the respondent as he has already faced the criminal proceedings

for 13 years and had also undergone the trauma being a convict

during pendency of appeal before learned Sessions Judge after

conviction of the trial Court.

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16. Considering her submissions and provisions of

Section 4 of the Probation of Offenders Act before extending the

.

benefit of provisions of this Act to the respondent, it would be

appropriate to call upon the report of the Probation Officer.

Accordingly, Probation Officer, Ani is directed to submit his report

in the Registry qua the respondent on or before 28.2.2018.

17. List on 7.3.2017 on which date the respondent shall

remain present in person.

January 5, 2018 (Vivek Singh Thakur)
(ms) Judge

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