.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 618 of 2008
Date of Decision 05th January, 2017
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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
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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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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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