Himachal Pradesh High Court
State Of H.P vs Suman Sharma And Others on 18 November, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 755 of 2008.
Date of Decision: 18th November, 2016.
.
State of H.P. .....Appellant.
Versus
Suman Sharma and others ....Respondents.
Coram
of
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
rt For the Appellant: Mr. Vivek Singh Attri, Dy. .A.G. For the Respondents: Mr. Rakesh Dogra, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge (Oral).
The instant appeal stands directed by the State of H.P. against the judgment of the learned Sub Divisional Judicial Magistrate, Rampur Bushehar, District Shimla, H.P., rendered on 01.09.2008 in Case No. 111-2 of 2004, whereby, he acquitted the accused/respondents herein for theirs allegedly committing offences punishable under Sections 451, 352 and 506 of the IPC read with Section 34 of the IPC.
2. The facts relevant to decide the instant case are that on 15.05.2004 at about 8.30 p.m. at place ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 2 Kumarsain complainant Rekha Devi resident as tenant of Subhash Bhardwaj with her children and niece Jogindra Devi. The niece of complainant Jogindra Devi .
solemnized the marriage with one Raju. The complainant was being harassed by the parents of Raju that she is the main culprit. She further narrated to the police that when she had gone to attend a local fair then accused persons of abused her. When the complainant returned back to her home at about 8.30 p.m. then accused persons appeared rt on the spot and gave beatings to her. She brought the matter to the notice of Police Station Kumarsain wherein FIR Ex.PW1/A was lodged against the accused. During the course of investigating site plan of the site of occurrence was prepared. Statements of the witnesses were recorded as per their version.
3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court.
4. The accused was charged by the learned trial Court for theirs committing offences punishable under Sections 451, 352 and 506 read with Section 34 of the ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 3 IPC. In proof of the prosecution case, the prosecution examined 4 witnesses. On conclusion of recording of prosecution evidence, the statements of the accused .
under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which they claimed innocence and pleaded false implication. However, they did not lead any defence evidence.
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5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour rt of the accused/respondents herein.
6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 47. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the .
learned Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication.
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8. This Court with the able assistance of the learned counsel on either side, has, with studied care and rt incision, evaluated the entire evidence on record.
9. The testification of the complainant qua the relevant incident embodied in FIR comprised in Ex.PW1/A is free from any taint or blemish qua hers (a) either contradicting her previous statement recorded in writing
(b) besides the sanctity of her testification comprised in her examination-in-chief stands uneroded given hers in her cross-examination not deposing contradictorily thereto. Consequently, the testification of the complainant unbereft of any blemish or taint for thereupon it being construable to be uncreditworthy warrants imputation of reliance thereupon. Moreover, the testifications of the eye witnesses to the occurrence, ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 5 who deposed as PW-2 and PW-3 lend formidable vigour to the testification of PW-1. A perusal of their respective testifications unveils the trite factum qua theirs deposing .
qua the relevant incident in tandem with the testification of PW-1 also an incisive reading of their respective testification omits to disclose qua their respective testimonies standing ridden with any taint of their of improving or embellishing upon their respective previous statements recorded in writing nor their respective cross-
rt examinations unveil a version qua the occurrence contradictory to the one enunciated by them in their examinations-in-chief also the respective testifications of the prosecution witnesses are unbereft of any taint or stain of any intra se contradictions. Consequently, when the untaint ridden besides obviously creditworthy evidence qua the relevant occurrence stood adduced by the prosecution before the learned trial Court, the latter for merely frivolous reasons embedded in evidence disclosing the prevalence of enmity inter se the complainant and the accused arising from theirs rearing a vendetta against her for hers encouraging Raju son of accused No.1 and brother of accused No. 2 to solemnize ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 6 marriage by elopement with one Jogindra, who stands related to the complainant besides though with the police station concerned standing located in proximity to the .
relevant site of occurrence, the incident standing not promptly reported thereat by the complainant, rather hers reporting the incident before the police station concerned with one day's delay, whereupon, it concluded of qua the embodiments occurring in the FIR acquiring a stain of theirs holding a concocted besides an engineered rt version qua the incident.
10. The tenacity of the aforesaid reasons, is bereft of any vigour especially when all the prosecution witnesses render an untaint ridden creditworthy version qua the occurrence. The mere factum of PW-3 in her cross-examination echoing qua in her presence no scuffling or fighting occurring inter se the complainant with the accused/respondents herein stood also inaptly concluded by the learned trial Court qua hers hence not lending corroboration to the testimony of PW-1, whereas, with hers in her testification comprised in her examination-in-chief making a disclosure qua hers evacuating the complainant from the clutches of the ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 7 accused/respondents herein, testification whereof when stood unconcerted to be shred of its efficacy by the learned defence counsel while holding her to cross-
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examination comprised in his not putting apposite suggestions to her, begets an inference qua hence the aforesaid testification of PW-3 comprised in her examination-in-chief qua hers evacuating the of complainant from the clutches of the accused/respondents rt vividly unveiling qua the accused/respondents holding the complainant imperatively hence it also conveying qua there occurring a scuffle inter se the complainant with the accused/respondents herein whereupon the effect of the testification of PW-3 in her cross-examination wherein she had deposed qua no scuffle or fighting occurring in her presence inter se the complainant with the accused not acquiring any paramount worth, for constraining the learned trial Court to dispel the testification of PW-3 embodied in her examination-in-chief wherein she has with candor made a communication qua hers besides others evacuating the complainant from the clutches of the accused/respondents herein. Conspicuously, when ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 8 hence there was an imminent display therein qua a scuffle occurring inter se complainant and the accused/respondents herein merely on hers desultorily .
deposing in her cross-examination qua no scuffling and fighting occurring inter se both would not benumb the effect of the relevant communications made by her in her examination-in-chief nor the learned trial Court could of hence erode its effect.
11. Since, in explication of the apposite delay, the rt complainant has purveyed a tangible ground comprised in the factum qua at the relevant time her husband being unavailable at home also hers tending to her minor children hence when it did comprise a tangible ground for the learned trial Court to dispel the vigour of the omission of the complainant to with utmost promptitude report the matter to the police station concerned, whereas, its negating the effect of the aforesaid explication purveyed by the complainant for the delay in the lodging of the FIR qua the relevant incident before the police station concerned, has hence committed a gross illegality in undermining the impact of the relevant explication besides it has committed a gross illegality in ::: Downloaded on - 15/04/2017 21:35:01 :::HCHP 9 mis-appreciating the impact of the untaint ridden testimonies of prosecution witnesses thereto.
12. For the reasons which have been recorded .
hereinabove, this Court holds that the learned trial Court below has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial of Court suffers from a gross perversity or absurdity of mis-
appreciation and non appreciation of evidence on record.
rt
13. Consequently, the instant appeal is allowed and the judgment of acquittal recorded by the learned trial Court in favour of the accused/respondents herein is set aside. Accordingly, the accused are held guilt for theirs committing offences punishable under Sections 451, 352 and 506 of the IPC read with Section 34 of the IPC. They be produced before this Court on 2.12.2016 for theirs being heard on quantum of sentence.
(Sureshwar Thakur)
18 th
November, 2016 Judge.
(jai)
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