Himachal Pradesh High Court
Peer Mohammad Azad vs Respondent on 13 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 611 of 2017 along with Cr. Appeal Nos. 612 of 2017 and 613 of 2017.
.
Reserved on: 27th August, 2018.
Date of Decision: 13th September, 2018.
1. Cr. Appeal No. 611 of 2017.
Peer Mohammad Azad .....Appellant.
State of H.P.
r to
Versus
...Respondent.
2. Cr. Appeal No. 612 of 2017.
Gulzar Ahmad Hakim .....Appellant.
Versus
State of H.P. ...Respondent.
3. Cr. Appeal No. 613 of 2017.
Gulam Hassan Hakim .....Appellant.
Versus
State of H.P. ...Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 2For the Appellant(s): Mr. Anoop Chitkara, Mr. Syed Wasiq, Advocate, Mr. Ab. Majid and Ms. Sheetal Vayas, Advocates.
.
For the Respondent(s): Mr. Hemant Vaid, Additional Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge.
All the aforesaid appeals are being disposed of by a common judgment, as, all arise, from, a common verdict rendered, by the learned trial Court.
2. The learned trial Court convicted besides sentenced the accused/convicts, namely, Gulam Hassan Hakim, Gulzar Ahmad Hakim, and, Peer Mohammad Azad, in, the hereinafter extracted manner:-
Sr. Name of the Under Sentence Fine In default of No. accused Section payment of fine
1. Gulam Hassan U/s 376 Rigorous Rs.10,000 Simple Hakim IPC imprisonment /- imprisonment for 7 years for 3 months U/s 406 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for three years for 1 month U/s 420 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for three years for 1 month U/s 494 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for three years for 1 month U/s 495 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for seven years for three months U/s 496 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for three years for 1 month ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 3 U/S 467 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for 7- years for thee months U/s 468 Rigorous Rs.5,000/ Simple IPC imprisonment - imprisonment for three years for 1 month .
U/s 471 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/S 120- Simple
B, IPC imprisonment --- ---
for 6 months
2. Gulzar Ahmad U/s 406 Rigorous Rs.5,000/ Simple
Hakim IPC imprisonment - imprisonment
for three years for 1 month
U/s 420 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/s 495 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
r for seven years for three
months
U/s 496 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/S 467 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for 7- years for thee months
U/s 468 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/s 471 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/S 120- Simple
B, IPC imprisonment --- ---
for 6 months
3. Peer Mohammad U/s 495 Rigorous Rs.5,000/ Simple
Azad IPC imprisonment - imprisonment
for seven years for three
months
U/s 496 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/S 467 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for 7- years for thee months
U/s 468 Rigorous Rs.5,000/ Simple
::: Downloaded on - 17/09/2018 22:58:29 :::HCHP
4
IPC imprisonment - imprisonment
for three years for 1 month
U/s 471 Rigorous Rs.5,000/ Simple
IPC imprisonment - imprisonment
for three years for 1 month
U/S 120- Simple
.
B, IPC imprisonment --- ---
for 6 months
All the sentences were ordered to run concurrently.
3. The facts relevant to decide the instant case that on 24.10.1995 complainant/prosecutrix lodged a complaint against accused Gulam Hassal Hakim, Gulzar Ahmad and Peer Mohammad Azad to the effect that she was carrying the business of export and import and was living in India for the last 14 years. That during this period she visited her native place in California 64 times and in September, 2001 she came to Mcleodganj and stayed in Mount View for a night and, thereafter, stayed in Hotel Annex Him Queen Mcleodganj. That Gulam Hassan invited her for dinner and introduced himself as a tourist guide and complainant stayed in Hotel Annex Him Queen for three days. That accused Gulam Hassan told her that he sells Kashmiri carpets and upon request of the complainant saw her carpets and had chosen two carpets.
That complainant encashed her traveler cheque from Western Union and paid 1200 US dollars to Gulam Hassan ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 5 towards price of those carpets. That Gulam Hassan had promised to post these two carpets to her native place in California, but she did not received the said carpets. That .
the complainant went to Delhi where Gulam Hassan had already booked a hotel room for complainant and Gulam Hassan had telephonically communicated to the complainant on 11.09.2001 regarding bomb blast in USA and called the complainant to Kashmir. The complainant wanted to visit her children to California but there were no flights to USA as per the directions of the US President and she stayed at Delhi for a week. That initially complainant refused to visit Kashmir, but since there were riots in Delhi, so complainant visited Kashmir on 1.10.2011 and accused Gulam Hassan met her at Srinagar airport with his friends.
Complainant stayed for one night in Mother Indian Houseboat and thereafter left for Pehlgaum. That complainant stayed at Pehalgaum for two weeks. Accused Gulam Hassan had borrowed 1800 US dollars from the complainant for which she enachsed her traveler cheque at J&K Bank, Srinagar and, thereafter, she left for California. That when complainant left India accused Gulam Hassan continuously telephoned her on various occasions and even during midnight and Gulam Hassan ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 6 also talked to her family members and, thereafter, after ten weeks complainant returned to India and Gulam Hassan proposed her for marriage. The accused Gulam .
Hassan gave reference of his being unmarried.
Complainant also told that said proposals were given to her telephnically by Gulam Hassan when she was in California. That Gulam Hassan also talked abut the marriage with complainant's mother and children. That complainant came to Dharamshala and checked in Hotel Annex Him Queen and went to Pehalgaum. On 30.05.2002, she was married with Gulam Hassan at Srinagar. That the marriage ceremonies were solemnised by a Muslim Priest, regarding this marriage, Nikahnama was prepared which was signed by the complainant, Gulam Hassan and remaining accused. That the aforesaid marriage agreement was prepared in the same day at High Court of Srinagar and the said agreement was signed by Advocate Hakak, Ajay Ahmed and by Gulam Hassan and accused Peer Mohammad and accused Gulazar Ahmad Hakim as well as complainant, but this agreement was not proper as it was declared in the agreement that both the parties were un-married at the time of aforesaid marriage.
That after marriage, the complainant, stayed for five days ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 7 with Gulam Hassan as husband and wife and, therefore, complainant returned to California. That Gulam Hassan instructed the complainant to closure her business at .
California and return to Pehalgaum. That complainant purchased many items worth 3000 US Dollars for the use of Gulam Hassan and when complainant came back, Gulam Hassal picked her at Delhi Airport. That complainant had eight big boxes with her and she stayed during night in hotel at Delhi and had also given to Gulam Hassan 9600 US Dollars in order to purchase piece of land.
That Gulam Hassan and complainant returned back to Dharamshala, Gulam Hassan has sexually assaulted her and left for Pehalgaum. They stayed at Dharamshala being husband and wife in a separate house and she purchased fridge and other house holds articles worth 2500 US dollars. ON 8.11.2002 Gulam Hassan left in the morning for Kashmir and complainant was alone at her house at Dharamshala. That after some time accused Gulzar came to the house of complainant with three porters and told the complainant that Gulam Hassan was not coming back.
The complainant had sold all the articles of her house to Gulzar for Rs.1,00,000/-. Complainant was sitting in the van and Gulzar brought a blank paper having a stamp on ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 8 the top and Peer Mohammad gave her cold drink as she was very upset. That the person wearing glasses asked the complainant to sign the blank paper on both the sides .
and also asked whether she had received Rs.1,00,000/-, and he also told her to first collect the money and then sign the register. Accused Gulzar paid her Rs.1,00,000/- in the presence of accused Mohammad and the person who was wearing glasses. That thereafter Gulam Hassan told the complainant to go back to California. That after this she returned again in March, 2003 and accused Gulzar told her to stay with Gulam Hassan as it is customary in India to buy gold for the family and the complainant had purchased gold worth 1000 US dollars and for Gulam Hassan and Gulzar at Dharamshala being family members.
Whens he questioned Gulam Hassan about her carpets and the land so purchase,d Gulam Hassan told her that he had bought land for her at Pehalgaum to construct a house and she did not remember how much money she had paid to Gula Hassan, her husband for the construction of house.
That Gulam Hssan sent her back to Dharamshala and asked her to send more money and on this she had deposited Rs.15,000/-. That Gulam Hassan had pretended to complainant to be single and, therefore, complainant ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 9 married Gulam Hassan. Accused Gulzar and Peer Mohammad signed the receipt and continuously lied with her that Gulam Hassan was single and thereby accused .
conspired to cheat her. Accused cheated her as Gulam Hassan was already married. Accused Peer Mohammad is signatory of the Nikhanama, marriage agreement and receipt and in September, 2005, the complainant came to know that Gulam Hassan was already married. It is stated that Gulam Hassan also cheated Japanese girl, who disclosed to the complainant that Gulam Hassan had already married and thereby Gulam Hassan cheated many women and accused Gulzar had also cheated many other women and had extracted more than Rs. One crore from them. The complainant went to the police to lodge the report but the police refused to register any complaint, and, thereafter she approached the Magistrate to lodge a complaint and on the direction of the Magistrate, the FIR was registered against the accused in the police station concerned. Thereafter police completed all the investigating formalities and arrested the accused.
4. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report, ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 10 under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court.
5. The accused/convict Gulam Hassan Hakim .
stood charged, by the learned trial Court, for, his committing offences punishable under Sections 406, 420, 494, 495, 496, 467, 468, 471 read with Section 120 B, IPC and Section 376 of the IPC, accused/convict Gulzar Ahmad Hakim stood charged for his committing offences punishable under Sections 406, 420, 495, 496, 467, 468, 471 and read with Section 120-B, IPC, whereas, accused Peer Mohammad Azad stood charged for his committing offences punishable under Sections 495, 496, 467, 468, 471 and read with Section 120-B, IPC. In proof of the prosecution case, the prosecution examined 31 witnesses.
On conclusion of recording, of, the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. They have also examined two witnesses in defence.
6. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction, upon, ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 11 the accused/convicts, for theirs hence committing, the, aforesaid offences.
7. The appellants herein/accused, stands .
aggrieved, by the findings of conviction, recorded, by the learned trial Court. The learned counsel appearing, for, the appellants herein/accused, has concertedly, and, vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-
appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal.
8. On the other hand, the learned Addl. Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 129. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
.
10. The learned trial Court, had, pronounced a verdict, of, conviction, and, consequent imposition of sentence, upon, accused Gulam Hassan Hakim, for, his committing, the, apt criminal misdemeanor(s), of, his forging Ex. PW1/E, (i) forgery whereof, purportedly ensues, from, his appending thereon, the, false signatures, of, one Josephine Marray alias Tabasum. However, the apt conviction, and, consequent imposition of sentence, upon, convict Gulam Hassan Hakim, for his purportedly, hence, forging the signatures, of, aforesaid, upon, Ex.PW1/E, is palpably fallacious, (ii) given the learned trial Court, rather misreading the opinion rendered by the FSL concerned, and, as borne in Ex.PW26/A, (iii) wherein, the handwriting expert concerned, on making apt comparison, of, the sample signatures of the aforesaid, with, the disputed signatures, earmarked as Q-1 to Q-3, and, as, borne in Ex.PW1/E, his making a clear opinion, qua, the aforesaid rather not authoring, the afore referred disputed signatures, (iv) reiteratedly, hence, the conviction and consequent imposition of sentence, upon, Gulam Hassan ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 13 Hakim hence for his forging, the, signatures of the complainant, upon, Ex.PW1/E, is set aside.
11. The marriage agreement, entered inter se, the .
complainant, and, accused Gulam Hassan Hakim, is, borne in Ex.PW1/D, and, thereunder, the, complainant hence contracted marriage, with, accused one Gulam Hasan Hakim. The complainant, does not, deny qua hers executing EX.PW1/D. The criminal misdemeanor(s) ascribed by the complainant, vis-a-vis, accused Gulam Hassan Hakim, and, the witnesses thereto, namely Peer Mohammad Azad, and, one Imtiyz Ahmad Hakak, is, anvilled, upon, (a) all aforesaid rather beguiling, her to execute it, (b) the, apt deception practised, upon, her is, embodied in the complaint, besides, is, testified, by her rather to arise, from, its rather containing a false recital, vis-a-vis, accused Gulam Hassan Hakim, not, at the stage contemporaneous to the execution of Ex.PW1/D, being single or unmarried, rather his thereat being married to one Jamila, (c) AND, his not annulling his marriage with Jamila, though, assured to her by accused Gulam Hassan Hakim, and, the witnesses to Ex.PW1/D. The prosecution in proving the aforesaid factum, had, depended upon the testification, in consonance therewith, rendered by the ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 14 complainant/prosecutrix, and, upon Ex.PW29/B, wherein, Jamila, is, continued to be reflected, as, wife of accused Gulam Hassan Hakim, besides reliance was placed, upon, .
Ex.PW29/A, wherein similar therewith reflections also stand carried. The afore reflections, borne, in the afore referred exhibits, do carry, a presumption of truth, and, even though there, is, no strict interdiction, under, Muslim Law, against, the contracting, of, second marriage, inter se Muslims, despite, subsistence, in contemporaneity thereto, of, a prior marriage, of, either of the spouses concerned.
(i) Dehors, afore, the prosecutrix's ascription of penal misdemeanors, to her husband, and, the witnesses to Ex.PW1/D, may, when stand founded, upon, a purported false recital, rather standing borne therein, and,comprised in one Gulam Hassan Hakim, rather in contemporaneity thereto hence cohabiting with one Jamila, also may hence achieve success, (ii) upon, best evidence, in, consonance therewith standing adduced. (iii) However, since reliance is placed, upon, the afore exhibits, thereupon, the falsity or otherwise ,of, the aforesaid recitals borne therein, is enjoined to be tested, given, the, afore reflections, borne, in the aforesaid exhibits, rather tentatively, carrying forth, the, prosecutrix's ascriptions. However, for the reasons to ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 15 be assigned hereinafter, the reliance placed thereon, by the learned trial Court, is fallacious, (iii) given the learned trial Court, not, bearing in mind, the deposition rendered .
by DW-1, the son, of, the deceased Moulvi, of, the village concerned, (iv) especially, when, the apt defence evidence, unless cogently eroded, rather stands at a pedestal at par with the prosecution evidence, hence, also, if, efficacious, rather does also enjoin, meteing, of, apposite credence, and, probative vigour thereto. In his testification, borne in his examination-in-chief, DW-1, has with utmost candour, hence, made voicings therein, qua his deceased father, the Moulvi of the village concerned, in his presence, and, the in presence of 5-6 people rather dissolving besides annulling, the, marital ties inter se Jamila Begum, and, one Gulam Hassan Hakim. The afore rendered testification, was, concerted to be shred, of, its efficacy, by the learned PP concerned, by his subjecting the aforesaid witness, to cross-examination, (v) yet, he was unable to elicit, from him, any articulation, qua, no custom prevailing in the area concerned, against any oral dissolution, of, a muslim marriage, under, the aegis, of the Moulvi, of, the area concerned. Consequently, with the prosecution not thereafter, through, an appropriate ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 16 motion, being made therebefore, producing the relevant best evidence, with open pronouncements therein (a) that the father of DW-1 being not the Moulvi of the village .
concerned, (b) nor it producing evidence, that, under the apt custom prevailing in the area concerned, there being a mandate, for, dissolution of marital ties, only, through a written deed, (c) thereupon, want of adduction thereof, rather leads, hence, to an inevitable conclusion qua the deposition, of, DW-1 hence carrying worth, and, apt probative vigour.
12. Be that as it may, even if, in the afore exhibits, borne in Ex.PW29/A, and, in Ex.PW29/B, one Jamila Begum, is continued, to be reflected to be residing in the house, of, Gulam Hassan Hakim, yet the afore reflections, would not, hence belittle, the testification of DW-1, as, her residing, in the house of the accused, may not per se, beget any further inference, of hers yet continuing to cohabit, with, one Gulam Hassan Hakim, as his wife. The further reason for making the aforesaid inference, arises, from the factum qua with the testification, of, the aforesaid, rather constituting the best evidence, for, belittling the efficacy, of, the testification of DW-1, (i) whereas, the prosecution, not, citing her, as a prosecution witness, nor hers stepping ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 17 into the witness box, rather hence galvanizes, a firm inference qua the testification of DW-1, rather remaining hence uneroded. In aftermath, it is to be concluded qua .
the apt recitals, borne in Ex.PW1/D, qua in contemporaneity, to the execution thereof, Gulam Hassan Hakim being single, not hence holding any vice, of, any falsity.
13. Furthermore, it is also to be determined whether the ascriptions, made by the prosecutrix, against the accused, appertaining to mis-appropriations, rather holding any credibility or not. For gauging the credibility, of, the prosecutrix's ascriptions qua the aforesaid factum,
(i) it is imperative, to, allude to her testification, borne in her cross-examination, (ii) importantly when, upon, rather occurrence therein, of, gross improvements, and, embellishments, vis-a-vis, the apt echoings occurring in her examination-in-chief, and, vis-a-vis, her previous statement recorded in writing, whereupon, rather her credibility, would, stand pronounced, to, be hence eroded.
During the course, of, the exacting cross-examination, of, the prosecutrix, by the learned defence counsel, the latter confronted her, with, her previous statement, borne in Ex.PW17/A, and, was able to therethrough, hence, make ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 18 emergences, qua her testification, in her examination-in-
chief, vis-a-vis, Gulam Hasan, borrowing 1800 US dollars, being both an improved, and, an embellished version, .
given, it, visibly standing not embodied in Ex.PW17/A. Likewise her version in her examination-in-chief qua hers lending 9600 US dollars, to accused Gulam Hassan, for purchasing land, in Pehalgaum, is also an apt improved or embellished version, as it, upon hers being confronted, with, her previous statement, recorded in writing, borne Ex.PW17/A, rather not finding any mention therein.
Further more, her testification in her examination-in-chief, qua hers being asked by accused Gulam Hassan, to close her business at California, and, to return to his house, at Pehalgaum, is also ridden with an aura of falsity, given, Ex.PW17/A, wherewith, the prosecutrix, during, the course of her cross-examination, stood, confronted with, by the learned defence counsel, rather not carrying any concurrent therewith articulations. Likewise her version, in her examination-in-chief, qua, upon, hers returning from California, thereupon, accused Gulam Hassan picking her at Delhi Airport, whereat,she had eight big boxes with her, and, hers staying in a hotel in Delhi, is, also an improved or an embellished version, (i) as it, upon, hers being ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 19 confronted with her previous statement recorded in writing, and, as, borne in Ex.PW17/A, it, not finding any mention therein. (ii) Furthermore, her version in her .
examination-in-chief qua the accused Gulam Hassan hence sexually assaulting her at Dharamshala, is also, an improved, and, an embellished version, (iii) given, upon, hers, being confronted by the learned defence counsel, with her previous statement recorded in writing, and, as borne in Ex. PW17/A, it, not finding any mention therein.
(iv) Likewise her version, in her examination-in-chief, qua, theirs staying at Dharamshala, in, a separate accommodation, as husband and wife, and, hers purchasing T.V. Fridge etc, worth 2500 US dollars, (v) as also her version, qua, on, 8.11.2002, accused Gulam Hassan, leaving, in the morning to Kashmir, and, hers being alone at Dharamshala, and, her friend coming to his house, and, after some time, accused Gulzar Ahmed, coming to her house, with three porters, and, telling that accused Gulam Hassan, is, not coming back, and, hers selling the articles lying in house to accused Gulzar, for Rs.1,00,000/-, (vi) are all hence an apt improved, and, embellished version(s), given, on hers being confronted, by the learned defence counsel, with, her previous ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 20 statement, borne in Ex.PW17/A, the aforesaid factum, not, finding any mention therein. Moreover, her version occurring, in her examination-in-chief, qua, a Muslim .
Priest hence coming to the houseboat, wherein, she was staying, for rather solemnizing her marriage, with, accused Gulam Hassan, as also, her version occurring in her examination-in-chief qua after, the, solemnising, of, their marriage in the houseboat, theirs, coming to High Court at Srinagar, (vii) whereat, the apt marriage agreement, borne in Ex.PW1/D, was prepared, is also ridden with an aura of falsity, given, Ex.PW17/A, wherewith the prosecutrix stood confronted, during, the course of her cross-examination, not carrying, any, concurrent therewith apt recital(s).
Furthermore, her version in her examination-in-chief qua accused Gulzar Ahmed after purchasing the aforesaid articles, hence, bringing her, to, the court, on the pretext of giving her, a receipt, and, hers signing a blank paper, is also an improved besides an embellished version, vis-a-vis, her previous statement recorded in writing, as, borne in Ex.PW17/A, given hers, on, being confronted therewith, it, not, finding any mention therein.
14. The afore apparent gross embellishments, and, improvements, as, made by the prosecutrix, in her ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 21 examination-in-chief, vis-a-vis, her previous statement recorded in writing, and, as borne in Ex.PW17/A, do, on all fronts, hence render all her echoings, as, borne in her .
examination-in-chief, to be hence ridden, with, a pervasive vice of falsity, (b)with, the further concomitant effect qua her testification, in, purported corroboration, of, the contents of Ex.PW17/A, being not amenable, for meteing, of, any probative vigour or any credence thereto.
15. The effect of the aforesaid discussion, is, qua despite the testification of the prosecutrix, as, comprised in her examination-in-chief, being omnibusly incredible, it rather being hence grossly improper, for, the learned trial Court, to proceed to render an order of conviction, upon, the convicts/appellants herein. In aftermath, the findings of conviction, as, recorded by the learned trial Court, upon, the convicts , hence, suffer from gross perversity or absurdity of gross mis-appreciation, of, evidence on record.
16. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, 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 ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP 22 court, hence, suffers from, a, gross perversity or absurdity of mis-appreciation and non appreciation of germane evidence on record.
.
17. Consequently, all the appeals are allowed and the judgement of conviction, impugned before this Court, is, set aside. In sequel, all the convicts/appellants are acquitted of the offences charged. The convicts/appellants are ordered to be released forthwith, from, judicial custody, if they are not required in any other case or process of law. Fine amount, if any, deposited by the convicts be refunded to them. Release orders be prepared accordingly. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) Judge 13th September, 2018.
(jai) ::: Downloaded on - 17/09/2018 22:58:29 :::HCHP