Himachal Pradesh High Court
_______________________________________________ vs Gurbinder Singh on 28 June, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 611 of 2008 Reserved on: 21.06.2016 Date of judgment: 28th June,2016 .
_______________________________________________ State of Himachal Pradesh .....Appellant Versus Gurbinder Singh of .....Respondent _______________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
rt 1 Whether approved for reporting? Yes. _______________________________________________ For the appellant: Mr. Virender Kumar Verma, Addl. Advocate General For the respondent: Mr. Sumit Raj Sharma, Advocate.
Chander Bhusan Barowalia, Judge The present appeal is maintained by the State of Himachal Pradesh against the judgment of acquittal dated 28.5.2008, passed by learned Additional Sessions Judge, Solan, District Solan, H.P. in Criminal Appeal No.9-S/10 of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 22007, whereby the judgment of conviction dated 26.9.2007, passed by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. in Criminal Case No.32/2 of 2003, under Section 354 of Indian Penal Code, has been set aside.
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2. Briefly stating the facts giving rise to the present appeal are that an FIR No.121, dated 12.12.2002, was registered at Police Station, Kasauli, alleging that on 8.11.2002, while the victim was returning home from her of tailoring school and was passing through the jungle at about 3.00 PM, the accused came out of the bushes and caught hold rt of the victim, dragged her towards bushes, he kissed her and also fondled her breast. He intended to commit rape. She raised alarm on which one Nek Ram of Village Baragu came and Sant Ram resident of Tiker Jabal reached on the spot. On seeing the witnesses the accused released her. She was threatened to be killed by the accused. The victim thereafter went home. However, her mother was out of village having gone to her relatives and returned on 13.11.2002. The victim revealed the incident to her mother. Thereafter, her mother revealed the facts to her father. They decided to lodge a report and thereby the matter was reported through the Up-Pradhan ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 3 of the Gram Panchayat, at Police Post, Kuthar. However, no action was taken so, the complaint was presented in the Court, which was sent to the Police Station, Kasauli for registration of the FIR. After completion of investigation, challan was .
presented in the Court.
3. After closure of the prosecution evidence, the statement of the accused was recorded. The case of the defence is that of total denial. It has been alleged that some of altercation in between the accused and the brother of the victim, the accused has been booked on false allegation.
rt However, no defence evidence was led.
4. The learned trial Court convicted and sentenced the accused for offence punishable under Section 354 IPC and also to undergo simple imprisonment for two months and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo simple imprisonment for 15 days.
4. The prosecution in order to prove its case, examined five witnesses.
5. I have heard learned Additional Advocate General for the State-appellant and Shri Sumit Raj Sharma, learned counsel for the respondent. Learned Additional Advocate ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 4 General has vehemently argued that the Appellate Court has given the findings on surmises and conjectures and without appreciating the evidence to its true perspective. The prosecution has proved the guilt of the accused beyond .
reasonable doubt and accused was required to be convicted and punished.
6. Shri Sumit Raj Sharma, learned counsel for the of accused/respondent, on the other hand has argued that the prosecution has miserably failed to establish the case against rt the respondent, and otherwise also, the prosecution story is full of doubts and appeal be dismissed.
7. To appreciate the arguments of learned Additional Advocate General and learned counsel for the respondent, I have gone through the record in detail.
8. On perusal of the prosecution story, it reveals that the victim was learning tailoring and has to travel to the Tailoring School from her home on foot and her home as well as the School was situated a long distance.
9. The prosecution examined five witnesses to prove its case.
::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 510. PW1 the victim, has deposed that when she was passing from the jungle and was alone, the accused came out from the bushes, who falls in her relations being son of her maternal uncle. He is alleged to have caught hold of her, .
fondled her breast with intent to commit rape dragged her towards bushes. She raised alarm on which Sant Ram and Anokhi Ram reached on the spot only then the accused released her and left the spot. She further stated that she had of revealed the incident to her mother on 13.11.2002, when she returned home, who had disclosed this fact to her father. She rt has further deposed that after the matter was revealed by her mother to her father, the matter was also revealed to her teacher. The complaint Ex.PW1/A bears her signatures. She has further deposed that the accused has also worked with her brother, namely Avtar Singh, for one and half month and thereafter they had some dispute. She deposed that she is not aware of any proceedings under Section 107/150 were initiated against the accused at the instance of her brother. She has further deposed that the accused used to admit her to be his sister. She has also deposed that when the complaint was prepared by the Advocate, it was not read over to her nor she ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 6 was got medically examined. Further, she has deposed that in the presence of Anokhi Ram and Sant Ram accused had kept hold of her and also that Sant Ram and Anokhi Ram had no conversation with her. She has denied the suggestion that .
false allegations have been made by her against the accused.
Thus, as per her statement, her modesty was outraged by fondling her breasts after keeping hold of her in the jungle and thereafter dragging her towards the bushes.
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11. PW2 Sant Ram has stated that nothing happened in his presence nor he know anything about this incident. He rt was declared hostile. Leading questions were permitted to be put to him. He in no way has supported the prosecution case.
Thus, he has deposed contrary to the statement made by PW1 that when Sant Ram and Anokhi Ram came on the spot, the accused was still keeping hold of the victim. He has denied the suggestion that he was making a false statement. Thus, one of the independent witness has totally denied the occurrence of incident in his presence.
12. The prosecution for the reasons best known has not examined Anokhi Ram other independent witness having won over by the defence. Further, even if witness had been ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 7 won over, it was incumbent upon the prosecution that the witness should have been examined and in case of not supporting the case, he could have been declared as hostile witness and the case should have put to him, but that has not .
been done. In view of turning hostile of PW2 Sant Ram and non-examination of Anokhi Ram, the case of the prosecution falls into the zone of doubt. It is settled law that the victim has to be believed and her statement cannot be brushed aside but of at least to the material particulars there must be some corroboration from the independent witness, if not to the exact rt incident atleast to establish attending circumstances, but for turning of the witness as hostile and non-examination of Anokhi Ram has gone against the prosecution version. No other witness is stated to have seen the occurrence or a witness to any chain of circumstances connecting the accused with the commission of the offence. As per the statement of victim, the accused was falling in her relationship admitting her as sister and also the making of the complaint at a belated stage as also there being nothing on record to suggest that in fact the matter firstly reported to the Incharge, Police Post, Kuthar and no action had been taken by the police. Had there been complaint ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 8 to the police at Kuthar in regard to this incident, there should have been some record with the police, but no record so far has been placed on the file. The delay from 9.11.2002 to 30.11.2002 has been tried to be explained by alleging that the .
mother of the victim was not at home and at the rest of the delay has been tried to be established by claiming that the matter despite being reported to the police Post, Kuthar, no action was taken by the police. There is also nothing on record of to suggest that when the police of Kuthar was not taking action in that event why any complaint has not been filed with the rt Higher Authorities.
13. PW 3 Lajo Devi, who is the mother of the victim has been examined, who deposed that she had gone to her relation where she had been informed by her son regarding conducting of rape upon the victim. When she returned to her home, the facts were revealed to her by the victim and she reported the matter at Police Post, Kuthar, but no action was taken by the police. Thereafter, the complaint was filed in the Court.
14. PW4 ASI Geeta Ram, was the Investigating Officer.
According to him the accused was found having committed ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 9 offence punishable under Section 354 IPC.
15. From the perusal of the evidence on record in detail, it is clear that the prosecution has failed to prove its case, as Sant Ram, Anokhi Ram who reached at the spot at .
the relevant point of time/occurrence of incident did not support the prosecution case and also as per the statement of Sant Ram nothing has been held in his presence nor he know anything about the incident. Further, non-examination of of Anokhi Ram also, prosecution falls into zone of doubt. Not only this, the victim was also not got medically examined.
rt It has also been alleged that because of some altercation in between the accused and the brother of the victim accused was booked on false allegations. It has also come on record that the accused is the son of maternal uncle of the victim.
Therefore, from the entire prosecution evidence, it is quite clear that prosecution has in fact failed to establish its case. Moral conviction can be no proof for legal evidence. The prosecution has in fact failed to prove the guilt of the accused by leading cogent and satisfactory evidence.
16. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 10 possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of .
evidence on record, reversal thereof by High Court was not justified.
17. The Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that of where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case rt beyond reasonable doubt.
18. So, doubt has been created about the incidence.
Therefore, in my opinion also the findings of the trial court are found not to be worthy of credence, as the entire evidence has not been taken into consideration while passing its judgment and the same are rightly ordered to be set aside by the lower appellate Court. However, the findings of the lower Appellate Court cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.
::: Downloaded on - 15/04/2017 20:42:35 :::HCHP 1119. In these circumstances, I find that the learned Appellate Court had rightly dealt with the evidence and found the same to be not worthy of credence. I thus find no merit and .
substance to interfere with the well reasoned judgment, passed by learned Appellate Court and the appeal filed by the appellant-State is accordingly dismissed.
of (Chander Bhusan Barowalia) Judge 28th June, 2016 rt (M.gandhi)) ::: Downloaded on - 15/04/2017 20:42:35 :::HCHP