IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.Appeal No. 50 of 2016
.
Date of Decision: September 16, 2017
State of Himachal Pradesh …Appellant.
Versus
Kashmir Singh ..Respondent.
Coram:
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 No.
For the Appellant:
r Mr. R.S. Verma, Additional Advocate
General.
For the Respondent: Mr.Vikas Rathore, Advocate, Legal
Aid Counsel, for the respondent.
Sanjay Karol, Acting Chief Justice (oral).
On 28.02.2014, prosecutrix (PW.13), lodged a
complaint at Police Station, Balh, District Mandi, H.P., on
the basis of which FIR No.71/2014, dated 28.02.2014
(Ex.PW.17/A), under the provisions of Sections 376 and
506 of the Indian Penal Code, was registered against
accused Kashmir Singh.
1
Whether reporters of the local papers may be allowed to see the judgment?
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2. In short, prosecutrix alleged that on
24.07.2005, she was married to Ravinder Singh son of
present accused Kashmir Singh. Her husband was
.
gainfully employed and during the year 2011 to January,
2013, when he was away to Saudi Arabia, her father-in-
law, the present accused, tried to molest and outrage her
modesty. Though she complained such conduct to her
mother-in-law, but was asked to keep mum. On the
return of her husband, she brought the matter to his
notice. Unfortunately on 26.01.2014, her husband
expired. Prior thereto, on 21.01.2014, accused gave him
beatings. Perhaps it is this, which prompted him to
commit suicide. Soon after death of her husband, on
28.02.2014 at about 6.30 a.m., accused sexually
assaulted her in the store room of the house. She
narrated the incident to her brother, who took her to
Mandi and after consulting an Advocate, lodged the
complaint.
3. Inspector Shamsher Singh (PW.19)
commenced investigation. Prosecutrix was got medically
examined; her statement under Section 164 of the
Cr.P.C. (Ex.PW.13/B) recorded; accused arrested and
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medically examined; and evidence, scientific in nature,
taken on record. With the completion of investigation,
which prima facie revealed complicity of the accused in
.
the alleged crime, Challan was presented in the Court for
trial.
4. Record reveals that accused was charged for
having committed offences punishable under the
provisions of Sections 376 and 506 IPC, to which he did
not plead guilty and claimed trial.
5. r In order to establish its case, prosecution
examined as many as 21 witnesses and statement of the
accused under Section 313 Cr.P.C., was also recorded, in
which he took defence of innocence and false
implication. In his defence, accused examined his mother
Hima devi (DW.1).
6. Finding the testimony of the prosecutrix not to
be inspiring in confidence, trial Court acquitted the
accused on both counts, in terms of judgment dated
16.05.2015, passed by Additional Sessions Judge (1)
Mandi, District Mandi, H.P., in Sessions Trial No. 13 of
2014, titled as State of H.P. Versus Kashmir Singh. It is
the correctness of the said judgment, which is subject
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matter of challenge in the present appeal, so filed by the
State under the provisions of Section 378 of the Code of
Criminal Procedure, 1973.
.
7. It is a settled principle of law that even though
acquittal confers a right of innocence upon the accused,
but then the Appellate Court has wide powers. It can
examine and re-appreciate the record in its entirety and
reverse such of those findings, which are perverse,
erroneous and illegal.
8. The question, which needs to be considered, is
as to whether findings returned by the trial Court are
based on correct and complete appreciation of material
placed on record or not?
9. In the instant case, certain facts are not in
dispute: (a) that Prosecutrix is a major; (b) was married
to son of the accused; (c) for two years i.e. from January,
2011 to January, 2013, her husband was working abroad;
and (d) on 26.01.2014 her husband died.
10. Prosecution case primarily rests upon the
testimonies of Vidya Devi (PW.1), Pradeep Kumar (PW.2)
and the prosecutrix (PW.13).
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11. To begin with, we may observe that
independent witnesses i.e. Vidya Devi and Pradeep
Kumar have not supported the prosecution at all.
.
Allegedly prosecutrix had narrated the incident to these
persons and/or witnessed the same. Now these
witnesses have turned hostile. When cross-examined by
the Public Prosecutor, we do not find them to have
corroborated the version of the prosecutrix or stated the
prosecution case. We see no reason for disbelieving their
testimonies. r
12. But then, it is not the law that version of the
prosecutrix needs corroboration. If her version, fully
inspiring in confidence, establishes the prosecution case,
accused can still be convicted solely on her statement.
13. Let us now examine the testimony of
prosecutrix. In Court, she states that for two years i.e.
2011 to January, 2013, when her husband was abroad,
her father-in-law, i.e. present accused, tried to develop
illicit relationship with her, as also molest her. This was
so done on several occasions. She did disclose such fact
to her mother-in-law as also grand mother-in-law, but
was advised to live separately from the accused and not
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disclose the incident to anyone. On 21.01.2014, accused
quarreled with her husband and also tore his clothes, as
a result of which, her husband started consuming liquor
.
and remained in a state of intoxication. Consequently on
26.01.2014, her husband took quarrel with her as a result
of which she informed her brother, who advised her not
to inform the police. Her husband also abused her father
and brother. On 26.01.2014 itself, accused made hue
and cry that his son had committed suicide. She admits
that a case against her father and brother was registered
under Section 306 IPC. She does state that her
statement was not recorded by the police. She further
goes on to state that on 26.01.2014, accused tried to
disconnect the electricity of her room. On 28.02.2014, at
about 6.30 a.m., while she was in kitchen, accused came
and asked her to bring his bag, so kept in the store.
When she went to bring the same, accused chased her
and after bolting the door from inside, sexually assaulted
her and all this, despite her resistance. Threats to her life
were also extended by him. Soon thereafter, she
informed her brother about the incident, which led to the
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filing of the case. She also states that she was medically
examined at Zonal Hospital, Mandi.
14. Thus far so good, however even when we
.
examine the cross-examination part of her testimony, we
find the witness to have contradicted herself on several
counts. Such contradictions are not minor, but glaring,
rendering her testimony to be totally unreliable and the
witness unworthy of credence. In fact to us, her version
appears to be totally improbable and not true, if not
false. r
15. We find that in Court, she has made several
improvements from her previous statement, so recorded
by the police, with which she was confronted. No doubt,
prosecutrix is a house-lady, but then she had access to
her relatives. In fact, she admits that she had
telephonically informed her father and brother about the
quarrel, which her husband had, had with her.
Significantly, at that point in time, she never narrated the
incident to anyone. Her parents are living just at a
distance of 6-7 kms. Why is it that for two years when
her husband was away, she did not make any grievance
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about the alleged misconduct and overt acts of the
accused to them?
16. Further, one notices that the incident in
.
question came to be reported to the police immediately
after registration of the case against her father and
brother. This was in relation to the death of her husband.
Police found her husband to have committed suicide only
on account of overt acts of her father and brother,
leading to registration of a case against them, under
Section 306 IPC. Her version that she resisted the acts
does not appear to be true. In fact, it stands materially
contradicted as in her cross-examination, she admits that
“I had not cried for help” and further “I had not disclosed
to my mother about the incident”. It has also come on
record that for last seven years she had been living
separately from her in-laws. Her relationship with her in-
laws was definitely not cordial. She admits that “It is
correct that my mother, my maternal uncle Bhim Singh,
and my aunt Saravmangla. And my Mousi Maya Devi,
mother in law of my elder sister came to our house and
requested the accused to keep me with them in a joint
family, 4-5 days prior to this incidence. It is incorrect
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that the wife of my brother remained with me up to
28.2.2014″. Significantly no grievance of any overt acts
was made at that time. Why would her family members
.
request the accused to keep the prosecutrix, if he was at
fault.
17. It has also come in her version that after
telephonically narrating the incident to her brother, she
started walking towards her parental house and met him
on the way. On way she admits not to have disclosed the
incident to anyone, more so to the Pradhan and members
of the Panchayat of Magarpadharu or Baggi. She admits
that Police Station, Balh, was on way to Mandi. She
explains of not reporting the matter to the police by
stating that relatives of the accused were posted there.
But then, this version to our mind is not proven on
record. It is vague and unspecific. Crucially she admits in
her cross-examination that her husband committed
suicide as a result of beatings given by her father and
brother. Now this totally belies her original version of the
accused having beaten her husband resulting into his
becoming alcoholic.
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18. It is in this backdrop, we find version of the
prosecutrix to be totally uninspiring in confidence.
Contradictions and improbabilities are galore rendering
.
her not to be a reliable witness. To us, there is no doubt
about such fact.
19. It be also observed that father and brother of
the prosecutrix have not been examined as prosecution
witnesses. In fact, when we peruse the testimony of
Leela Devi (PW.14), mother of the prosecutrix, we find
her to have contradicted the version of her daughter.
According to the mother, she had been informed by her
daughter about the overt acts of the accused, which fact
stands categorically denied by the latter.
20. We may also observe that even by way of
corroborative evidence, prosecution has not been able to
establish the version of the prosecutrix. Dr.Anjali (PW.6),
who proven MLC (Ex.PW.6/B), does not categorically
state that immediately prior to medical examination,
prosecutrix was subjected to sexual assault.
21. Court below does not find prosecution to have
proven its case, beyond reasonable doubt, to the effect
that on 28.02.2014 at about 6.30 a.m., at place
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Mashyathan (Balh) accused had sexual intercourse with
the prosecutrix and criminally intimidated her to kill her,
by leading clear, cogent, convincing piece of evidence.
.
22. The Court below, in our considered view, has
correctly and completely appreciated the evidence so
placed on record by the prosecution. It cannot be said
that judgment of the trial Court is perverse, illegal,
erroneous or based on incorrect and incomplete
appreciation of material on record resulting into
miscarriage of justice.
23. The accused person has had the advantage of
having been acquitted by the Court below. Keeping in
view the ratio of law laid down by the Apex Court in
Prandas Vs. The State, AIR 1954 SC 36, since it cannot be
said that trial Court has not correctly appreciated the
evidence on record or that acquittal of the accused has
resulted into travesty of justice, no interference is
warranted in the instant case.
24. For all the aforesaid reasons, present appeal,
being devoid of merit, is dismissed, so also the pending
application(s), if any. Bail bonds furnished by the accused
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are discharged. Record of the trial Court be immediately
sent back.
.
(Sanjay Karol),
Acting Chief Justice.
September 16, 2017 (Sandeep Sharma),
(Purohit) Judge.
r to
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