Himachal Pradesh High Court
State Of Himachal Pradesh vs State By Public Prosecutor on 30 September, 2022
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No. 255 of 2012
Between:-
STATE OF HIMACHAL PRADESH
......APPELLANT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
Ra
RAJINDER KUMAR SHARMA,
SON OF LATE SH. DHANI RAM,
RESIDENT OF VILLAGE DUNGI,
KANDEWAN, P.O. PANAR,
TEHSIL NAHAN, POLICE STATION,
RENUKA JI, DISTRICT SIRMOUR, H.P.
......RESPONDENT
(BY MR. HAMENDER SINGH CHANDEL,
ADVOCATE)
RESERVED ON:09.09.2022
DECIDED ON :30.09.2022
This petition coming on for judgment this day,
Hon'ble Mr. Justice Sushil Kukreja, delivered the following:
JUDGMENT
State has preferred the present appeal under Section 378(3) of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C") against the judgment of acquittal dated ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 2 17.03.2012, passed by learned Special Judge, Sirmour at .
Nahan, District Sirmour, H.P. in Sessions Trial No. 30-ST/7 of 2009.
2. By virtue of the judgment, dated 17.03.2012, the learned Trial Court had acquitted the respondent (hereinafter referred to as 'the accused) of the charges framed against him under Sections 354, 355, 379, 504 and 506-II of Indian Penal Code, read with Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. Brief facts of the case are that on 13.03.2009, the prosecutrix came to P.S. Renuka Ji alongwith her brother Pritam Singh and sister Kaushalya Devi and had moved a complaint against the accused for registration of case, wherein she stated that she is a President of Mahila Mandal and Member of All India Janvadi Committee and also working with other organizations. She further stated in her application that on 13.03.2009, she and her sister had gone to attend the marriage of her cousin and when, after taking meals, she alongwith her sister was coming back to their house, all of a sudden, one boy named Rajinder came and caught hold of her from her arm despite her resistance. Many people gathered there. She made ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 3 him to understand not to misbehave with her but to no avail, .
rather, he dragged her inside the door and caught hold of her by her neck and uttered "KUTI TERI HAISIAT KAYA HAI RAAND". She was defending herself, but the accused broke pins of her Dupatta and torn her clothes. Her sister and other people saved her from the clutches of the accused. Thereafter, the accused had given a punch blow to her and threatened to kill her and her family members. Sonu, Raju, Ankit, Satya Ram, Bhagtu and Pritam, who saved her from the clutches of the accused, were also threatened to be killed by him. The prosecutrix further stated in her complaint that the accused molested her, inflicted nail bite injuries, threatened to kill her and her family and snatched her gold Mangal Suttra. Thereafter, on the basis of the complaint, an F.I.R. was registered against the accused at Police Station Renuka Ji.
4. During investigation, medical examination of the prosecutrix was conducted. The police had taken into possession the torn shirt of prosecutrix vide memo Ext.PW-1/B. The police also obtained caste certificate of the prosecutrix and that of the accused. The statements of witnesses were recorded as per their version and after completion of the ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 4 investigation, challan was prepared and presented before the .
Court and after having found prima facie case against the accused, charge was framed against him for the commission of offences punishable under Sections 354, 504, 379, 355 and 506-II of the Indian Penal Code read with Section 3(xi) of the SC and ST (Prevention of Atrocities) Act, 1989, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined as many as 14 witnesses. Statement of accused under Section 313 Cr.P.C., was recorded, wherein he denied the case of the prosecution in toto and claimed himself to be innocent, However, he did not lead any evidence in his defence.
6. On the basis of evidence led on record by the prosecution, the learned trial Court acquitted the accused of the charges framed against him under Sections 354, 504, 379, 355 and 506-II of the Indian Penal Code read with Section 3(xi) of the SC and ST (Prevention of Atrocities) Act, 1989.
7. Being aggrieved and dissatisfied with the judgment of acquittal passed by the learned trial Court, State had filed the present appeal.
::: Downloaded on - 01/10/2022 20:01:55 :::CIS 58. Learned Deputy Advocate General, contended .
that the learned trial Court has adopted a hyper technical approach by ignoring the prosecution evidence as the accused had molested the prosecutrix, inflected nail bite injuries and also threatened to kill her and her family. With all these submissions, Mr. Kunal Thakur, Deputy Advocate General, has prayed for acceptance of the appeal.
9. Per contra, Mr. Hamender Singh Chandel, learned counsel for the accused, has stated that nothing material has been extracted from the evidence of prosecution, therefore, the learned Trial Court has rightly acquitted the accused from the charges levelled against him.
10. I have heard learned Deputy Advocate General for the State and learned Counsel for the accused and also gone through the record minutely.
11. At the very outset, it needs to be observed that the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal as an order of acquittal adds up to the presumption of innocence in favour of the accused. In Dhanapal vs. State By Public Prosecutor, Madras, (2009) 10 SCC ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 6 401, the Hon'ble Apex Court has held that the presumption of innocence of the accused is strengthened by the judgment of .
acquittal passed by the trial court. The relevant portion of the aforesaid judgment reads as under: -
25. The same principle has been followed in Atley v.
State of U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the Court said:
"5. ...It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court Thus, the Appel- late Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Which had the advantage of observing the demeanor of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."
12. In N.Vijaykumar vs State of Tamil Nadu, (2021) 3 Supreme Court Cases 687, the Hon'ble Apex Court has held that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and secondly, the ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 7 presumption of his innocence is further strengthened by .
the judgment of his acquittal passed by the trial court. The relevant portion of the judgment reads as follows: -
"20. ......... By considering the long line of ear-
lier cases this Court in the judgment in the case of Chandrappa & Ors. v. State of Karnataka (2007)
4 SCC 415 has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquit-
tal. Para 42 of the judgment which is relevant reads as under:
"42. From the above decisions, in our con- sidered view, the following general principles re-
garding powers of the appellate court while deal-
ing with an appeal against an order of acquittal emerge :-
(1) to (3) xxx xxx xxx (4) An appellate court, however, must bear in mind that in case of acquittal, there is double pre-
sumption in favour of the accused. Firstly, the pre-
sumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be inno- cent unless he is proved guilty by a competent court of law. Secondly, the accused having se- cured his acquittal, the presumption of his inno-
cence is further reinforced, reaffirmed and strengthened by the trial court.
13. In Jafarudheen & Ors. vs State of Kerala, 2022 LiveLaw (SC) 403, the Hon'ble Apex Court has held that the presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. The relevant portion of the judgment reads ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 8 as under: -
"25. While dealing with an appeal against acquittal by .
invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.
14. Therefore, the instant appeal has to be decided in view of the aforesaid settled legal preposition. Before proceeding further, it would be pertinent to mention here that there is no dispute about the fact that the complainant belongs to Scheduled Caste, whereas the accused belongs to upper caste. The FIR was registered at Police Station Renuka Ji, District Sirmour, H.P. on the basis of complaint filed by the prosecutrix. However, there are various omissions in the deposition of the prosecutrix before the Court. In the F.I.R.
Ext. PW11/A, registered on the basis of the complaint submitted by the prosecutrix, it has been mentioned that during the scuffle accused had also snatched her Mangal Suttra but in her deposition before the court, she has omitted to state that ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 9 accused had snatched her Mangal Suttra. Furthermore, in the .
F.I.R., it has been stated that accused brought an iron punch to kill the prosecutrix, however, the above fact has not been stated by the prosecutrix in her deposition. Since the prosecutrix has failed to depose the aforesaid fact before the trial Court, the same cannot be said to have been proved to have been occurred. Therefore, testimony of other witnesses qua the removal of the gold Mangal Suttra of the prosecutrix as well as possession of iron punch by the accused cannot acquire the value of corroborative piece of evidence as the said fact has not been deposed by the prosecutrix. Even, PW-11, ASI Bihari, Lal, who had partly investigated the case has admitted in his cross-examination that during the investigation it was not found that Mangal Suttra was removed by the accused and it was also found that the accused was not carrying any iron punch.
Furthermore, prosecutrix has also improved her version in her deposition before the Court. In the F.I.R., prosecutrix has alleged that accused had utter the words "KUTI TERI HAISIAT KAYA HAI RAAND". However, in her deposition, the prosecutrix made improvements by deposing that accused insulted her by calling "KOLI KALANDI TERI AWKAT KAYA HAI".
::: Downloaded on - 01/10/2022 20:01:55 :::CIS 1015. It is settled position of law that FIR is the first .
information of commission of offence to set the Investigation in motion and the law does not require the mentioning of all the minute details of the offence in the F.I.R. However, it is also settled that the evidence led in the Court must run in consonance with the contents of FIR and any evidence, contrary to the genesis of the case narrated in the FIR, is fatal to the prosecution case. In the present case, the evidence led by the prosecution shows that the same is not in consonance with the contents of FIR. There are various contradictions in the versions of the prosecutrix, which caste a serious doubt about the truthfulness of the case of the prosecution. Even medical evidence does not support the story of the prosecution as the prosecutrix stated that during the process of catching hold of her neck, accused inflicted nail marks on her neck, however, the MLC Ext.PW-7/B, qua the medical examination of the prosecutrix, nowhere depicts any nail marks found inflicted on or around the neck of the prosecutrix. In cross-examination, the prosecutrix stated that at the time of the accused having proceeded to catch hold of her neck and then proceeding to tear her shirt, his hands were smeared with food particles, however, ::: Downloaded on - 01/10/2022 20:01:55 :::CIS 11 the torn shirt of the prosecutrix does not have any stains of food .
particles. Therefore, version of the prosecutrix that accused had torn her shirt seems to be unbelievable.
16. From the perusal of the entire evidence on record, I am of the firm opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt as there are material contradictions, inconsistencies and improvements in the deposition of the prosecutrix made over her statement under Section 154 Cr.P.C., which creates doubt about the truthfulness of the case of the prosecution.
17. The State has failed to point out any irregularity or illegality much less perversity in the judgment of the acquittal passed by the learned Trial Court, as such, there is no merit in this appeal and the same is accordingly dismissed. The bail bonds, if any, furnished by the accused is discharged. Record of the learned Trial Court be sent back.
( Sushil Kukreja ) Judge 30th September, 2022 (ravinder) ::: Downloaded on - 01/10/2022 20:01:55 :::CIS