Himachal Pradesh High Court
State Of Himachal Pradesh vs Monika Kinnar Alias Priya on 13 December, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 26 of 2008 Reserved on : 21.11.2016 .
Decided on : 05.12.2016 State of Himachal Pradesh .......Appellant.
Versus Monika Kinnar alias Priya. ......Respondents of Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1Yes. For the appellant rt : Mr. Virender K. Verma, Additional Advocate General with Mr. Pushpinder Singh Jaswal, Dy. Advocate General and Mr. Rajat Chauhan, Law Officer, for the appellant.
For the respondent : Mr. Ajay Dhiman, Advocate.
_____________________________________________________________________ The present appeal is maintained by the appellant/State of Himachal Pradesh, under Section 378 of the Code of Criminal Procedure, assailing the judgment, dated 28.09.2007, passed by the learned Judicial Magistrate 1st Class, Manali, District Kullu, H.P., whereby the accused/respondent (hereinafter to be called as "the accused") was acquitted under Section 325 of the Indian Penal Code.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 22. Briefly stating the facts, as per the prosecution story, giving rise to the present appeal are that on 17.06.2005, .
some transgenders, while singing songs, reached the complainant's shop, at Model Town Manali and demanded ` 50/- from her. The complainant was not having ` 50/-
currency note, therefore, she gave ` 5/- to them, but the of transgenders refused to take ` 5/- and said that in these days of high prices, ` 5/- does not carry any value and used filthy rt language also. When complainant objected about their filthy language, they started given beatings to her. After the said occurrence the complainant made a phone call to the Police, in the meantime, Sunita Sharma, also reached on the spot alongwith other persons and saved the complainant from the transgenders. Thereafter, complainant alongwith Sunita Sharma, went to the Police Station and reported the matter to SI Roop Singh. SI Roop Singh advised her to lodge the report with the MHC. Therefore, the complainant and Sunita Sharma went to the room of Munshi and they were followed by three transgenders, who started quarrelling with the complainant.
When the complainant asked them not to use filthy language, they scuffled with the complainant and one transgender ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 3 picked up a scale (futa) from the table and hit the complainant on her head, due to which she sustained injury and the blood .
started oozing from her head. After such occurrence, Police officials intervened and Rapat No. 26, dated 17.06.2005, was registered. Thereafter, the complainant was taken to CHC Manali for treatment, wherefrom the complainant was referred of to Lady Willington Hospital, Manali, where the Medical officer opined the injury as grevious, which led to registration of FIR.
3. rt The prosecution, in order to prove its case, has examined as many as seven witnesses. Statement of accused was recorded under Section 313 Cr.P.C, wherein accused denied the prosecution case and claimed innocence. No defence evidence was led by the accused.
4. I have heard learned Additional Advocate General for the appellant/State and learned defence counsel for the respondent/accused.
5. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.
::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 46. PW-1, Dr. Philip Alexander, Medical Officer, Mission Hospital, Manali, who has medically examined the .
complainant has stated that the injuries sustained by the complainant, could be sustained with danda.
7. PW-2, MC, Bhoop Singh, the alleged eye witness, has completely contradicted the prosecution version. He has of stated that on 17.06.2005, he was posted at Police Station, Manali as MC. At about 6.00 P.M. the complainant visited the rt Police Station, followed by one transgender named Monika.
Both of them were started quarrelling and the complainant slapped the accused, she also picked up the scale from the table and tried to hit the accused, but, the accused snatched the scale from the complainant and hit the complainant with the same on her head, due to which blood started oozing from her head. He has further stated that after the said occurrence he and MHC Hari Singh, intervened and took the complainant to CHC Manali, for medical examination. The case was registered and scale, which was used during the alleged occurrence was taken into possession, vide seizure memo Ex.
PW2/A. However, this witness has also stated that danda, Ex.
P-1, was produced in the Court. In his cross-examination he ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 5 has stated that the complainant slapped the accused and danda was picked up for hitting the accused. PW-2 admitted .
that danda, Ex. P-1, was the same, though, as per the prosecution version, as well as PW-2, the accused hit the complainant with the scale, but the scale was not produced before the Court.
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8. PW-4, complainant, has stated that on 17.06.2005, at 6:00 p.m., she alongwith Sunita Sharma went to Police rt Station to report the matter, qua beatings given to her by some transgenders. She went to Additional SHO, SI Roop Singh, who advised her to report the matter to Munshi.
Thereafter, complainant alongwith Sunita Sharma went to the room of Munshi, but they were followed by the accused and the accused started using filthy language against the complainant and hit her on her head, as a result, blood started oozing from her head.
9. PW-5, Sunita Sharma, has also described the same version as deposed by PW-4, but, she contradicted the statements of PW-1 and PW-2. As per her version the weapon of offence was scale not danda. PW-1, Dr. Philip Alexander, Medical Officer, Mission Hospital, Manali, has also stated that ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 6 the injuries sustained by the complainant could be possible with danda. Thus, the statement of PW-1, makes the .
prosecution version doubtful. The statement of PW-5 also contradicts the contents of FIR Ex. PW-6/B and Rapat Ex.
PW-6/C, as this witness has not stated qua the factum of entering into the room of Munshi by three transgenders. PW-
of 5, is admittedly of the same community of which the complainant is and she has accompanied the complainant to rt the Police Station, thus it seems that PW-5 is an interested witness and she has a reason to depose in favour of the complainant.
10. PW-6, SI Dharam Singh, Investing Officer of the present case had visited the spot on 19.06.2005, prepared site plan Ex. PW-6/A and taken into possession the weapon of offence i.e. danda, Ex. P-1 vide seizure memo Ex. PW-2/A.
11. PW-7, ASI Ram Saran, has partly investigated the present case and recorded the statement of PW-5, whereas PW-3, PC, Duni Chand, was the witness to seizure memo, Ex PW-2/A.
12. From the above discussion of evidence on record, it is clear that the witnesses have completely contradicted the ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 7 prosecution story, as set up against the accused. As per PW-2, the accused and the complainant had visited the Police .
Station and started quarrelling with each other. The complainant slapped the accused, thereafter, she picked up the scale from the table and tried to hit the accused, however, the accused snatched the scale from the complainant and hit of the complainant on her head, so the injury was caused. PW-2 also contradicted the statements of PW-4 and PW-5. PW-1, rt has specifically stated that the injury, which was shown to him at the time of medical examination, was possibly caused with a danda. PW-5, had been in close association with the complainant, thus she cannot be termed as an independent witness. Accordingly, the statements of PW-2, PW-4 and PW-5 are not consistent and sufficient enough to prove the guilt of the accused. Consequently, the statements of PW-4 and other witnesses, as examined by the prosecution has become doubtful. The alleged occurrence took place in presence of PW-
2, MC, even though the name of the accused was not find mention in FIR, Ex. PW-6/B, as well as, in Rapat, Ex. PW-
6/C. ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 8
13. Thus, in the absence of any reasonable and plausible explanation, an adverse inference has to be drawn .
against the prosecution version and the contradictory statement of the witnesses create suspicion.
14. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are of possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When rt judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
15. The Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
16. So, in the opinion of this Court, when the identity of the accused is not established, the findings of the learned Court below cannot be said to be perverse and against the law, ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 9 as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.
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17. In view of the aforesaid decisions of the Hon'ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same is deserves dismissal and is accordingly dismissed. Pending application(s), if any, of shall also stands disposed of.
rt (Chander Bhusan Barowalia)
Judge
5th December, 2016
(raman)
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